Stevens v. Standard Oil Co.

47 So. 140, 156 Ala. 581

• Court: Supreme Court of Alabama
• Decided: July 1, 1908
• Status: Published

Opinions

McCLELLAN, J.

The pleas interposed by the defendant (appellant) were the general issue and “that he has paid the debt for which this action was brought.” It is to be noted that the plea of payment did not aver that such payment was made before the commencement of this suit. It is clear that such plea is not one puis darrein continuance.

Upon these issues the court, without jury, found that payment of the demand for which the plaintiff sued was made after the suit was. instituted. Judgment was thereupon rendered for the plaintiff. Code 1907, § 1825, commands that, unless otherwise directed by law, the successful party in all civil actions shall have judgment for full costs. We know of no authority reposed in the court below to cast the costs, upon such issues as Were here made, otherwise than in favor of the successful party, as the cited statute requires. The plea of payment was proven, whether the satisfaction of the demand was had before or after suit brought; and the plaintiff, having taken issue thereon, without objection or reply thereto, was bound, in order to refute the plea, to show that no payment at any time had been made. Both parties having affirmatively formed the issue on the plea as framed, the defendant was entitled to his judgment, if payment at any time was proven; and this the court found. And it is manifestly a non sequitur to assume, as the dissent does, that, because the defendant contended that payment was made before the suit was brought, in literal proof of his unlimited plea of payment, he is taking “advantage of the informality of his own plea for the first time on appeal.”

The judgment below, therefore, is reversed, and one will he here rendered in favor of the defendant.

Reversed and rendered.

Tyson, C. J., and Anderson and Denson, JJ., concur.