Tate v. Gilbert

2 Port. 386

• Court: Supreme Court of Alabama
• Decided: June 15, 1835
• Status: Published

Opinion

By Mr. Justice Hitchcock :

This case is submitted without argument.

The action is assumpsit, brought by the plaintiff as" guardian of Sally McGuire, to recover a sum of money alleged to be in the hands of the defendant, as former guardian of the same individual. The defendant pleaded the general issue. A trial, verdict and judgment were had for the plaintiff. A bill of exceptions was taken, and the cause was brought to this Court, where it was reversed and remanded, after which a second trial was had, and a verdict was rendered for the plaintiff when a new trial was granted, and the cause was continued to August term, 1834, when the Court permitted the defendant to withdraw the plea of the general issue, and plead three pleas in bar.

■ 1. -That the plaintiff was not the guardian of Sally McGuire at the time of the commencement of his ■suit.

2. That the defendant was the guardian of Sally McGuire at the time of the commencement of said suit; and

3. That the Orphans’ Court for Shelby county, did on the 6th day of February, 1832, settle the accounts of the defendant as guardian of Sally McGpire, and render a decree against him for two hundred and twenty one dollars sixty two and a half cents, which was for the same identical cause of action as this suit, and which decree is in full force, &c.

To these pleas, the plaintiff filed a general demurrer, which was overruled, and the plaintiff- declining to reply, judgment final was rendered for the defendant, and the case has been brought here by writ of error.

It has been repeatedly decided by this Court, that it lias no power to control the discretion of the Court below, in regulating the pleadings, allowing amendments, and filing additional pleas. But this must be understood, to be confined to such pleas as are consistent with each other, and with the due and regular order of pleading.

There was no error in allowing the defendant to withdraw the plea of the general issue, and file other-pleas in bar of the action.

But the last of the three pleas above pleaded, is a plea of puis darrein continuance, which is a waiver of all former pleas. The plaintiff was not bound to reply to this and the other two, and therefore he properly demurred to the whole.

Whether the last plea is good in law as a bar to the plaintiff’s action, is a question upon which we give no opinion. The case is decided solely on the ground, that the plaintiff was not bound to reply to the third plea; and as he was not bound to make a selection, he was not bound to answer either.

Let the judgment be reversed, and the cause remanded.