Tobias v. Josiah Morris & Co.

31 So. 498, 132 Ala. 267, 1901 Ala. LEXIS 210

• Court: Supreme Court of Alabama
• Decided: December 18, 1901
• Status: Published

Opinion

DOWDELL, J.

— The appeal in this case is taken from the judgment of the court rendered in favor of the defendant, the appellee, on failure and refusal of appellant, plaintiff in the court below, to further plead, after ruling by the court adverse to plaintiff on demurrers to plaintiff’s replications to pleas 2, 3 and 7. At the stage of the pleading when the .plaintiff declined to further plead on account of the adverse ruling, and judgment was entered by the court in favor of the defendant, there were two pleas on file, numbers 4 and 5, both of which went to the entire complaint, number 4 being a plea of payment, and number 5, the general issue. No .demurrers were filed to these pleas, nor were there any replications filed thereto. They each set up a complete defense to the action brought by the plaintiff, and as long as these pleas remained, presenting a complete defense to plaintiff’s action, the plaintiff could not, because of adverse rulings upon other pleas, refuse to take issue upon said pleas or otherwise reply to the same. The judgment rendered by the court on the refusal of the plaintiff to further plead will be referred to the sufficient pleas.—Brown v. Commercial Fire Ins. Co., 86 Ala. 189; Guilford v. Kendall, 42 Ala. 651; Clearwater v. Meredith, 1 Wall. 25; Zirkle & Moore v. Jones, 129 Ala. 444.

The judgment is affirmed.