Smith v. Allen

142 Ala. 148

Opinion

McCLELLAN, C. J.

This is an action of assumpsit, instituted by Mrs Allen against M. L. Smith, et al.,'in the city court of Talladega for one hundred dollars. There was verdict and judgment for the plaintiff in the sum of thirteen and 50-100 dollars. Motion was made by defendants to set aside this judgment and dismiss the suit on the ground that the recovery was for a less amount than that of which the court had jurisdiction, under the provisions of section 3315 of the Code. The motion should have been granted; The action was “on a moneyed demand.” The recovery wa.s below the minimum amount- of the court’s jurisdiction. The amount claimed ivas not reduced “below that of which the court had jurisdiction by a set-off successfully made by the defendants.” Every constituent of the statutory predicate for the motion, therefore, existed. Thé affidavit provided for by the statute to avail the setting aside of the judgment and dismissal of the suit was not made. The court erred in overruling the motion. Its judgment thereon must be reversed and a judgment will he here entered granting said motion, setting aside the judgment for plaintiff and dismissing the suit out of the city court.

Reversed and rendered.

Tyson, Simpson and Anderson, J. J., concurring.