Woodward Iron Co. v. Keller

Supreme Court of Alabama

Woodward Iron Co. v. Keller

74 So. 933, 199 Ala. 432, 1917 Ala. LEXIS 200

CourtSupreme Court of Alabama

DecidedApril 5, 1917

StatusPublished

Cited by1 cases

This text of 74 So. 933 (Woodward Iron Co. v. Keller) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woodward Iron Co. v. Keller, 74 So. 933, 199 Ala. 432, 1917 Ala. LEXIS 200 (Ala. 1917).

Pincite

Opinion

ANDERSON, C. J.

(1, 2) Section 5355 of the Code of 1907 plainly provides for setting aside the judgment and dismissing the cause where the suit is for a moneyed demand for an amount within the jurisdiction of the court if the judgment rendered is below the jurisdiction of the court, unless the amount was reduced by set-off successfully pleaded or unless the plaintiff makes the prescribed affidavit. This statute applies to all actions ex contractu, but not to torts.—First National Bank of Gadsden v. Pinson, 105 Ala. 588, 17 South. 182, and cases there cited; Smith v. Allen, 142 Ala. 148, 37 South. 933. The present action is ex contractu, and the trial court erred in not setting aside the judgment and dismissing the suit. The case of Sharpe v. Bareny, 114 Ala. 361, 21 South. 490, relied upon by appellee, was a tort action.

[433]*433The judgment of the city court is reversed, and one is here rendered setting aside the judgment and dismissing the cause.

Reversed and rendered.

Mayfield, Somerville, and Thomas, JJ., concur.

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ANDERSON, C. J.

(1, 2) Section 5355 of the Code of 1907 plainly provides for setting aside the judgment and dismissing the cause where the suit is for a moneyed demand for an amount within the jurisdiction of the court if the judgment rendered is below the jurisdiction of the court, unless the amount was reduced by set-off successfully pleaded or unless the plaintiff makes the prescribed affidavit. This statute applies to all actions ex contractu, but not to torts.—First National Bank of Gadsden v. Pinson, 105 Ala. 588, 17 South. 182, and cases there cited; Smith v. Allen, 142 Ala. 148, 37 South. 933. The present action is ex contractu, and the trial court erred in not setting aside the judgment and dismissing the suit. The case of Sharpe v. Bareny, 114 Ala. 361, 21 South. 490, relied upon by appellee, was a tort action.

[433]*433The judgment of the city court is reversed, and one is here rendered setting aside the judgment and dismissing the cause.

Reversed and rendered.

Mayfield, Somerville, and Thomas, JJ., concur.

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Bluebook (online)

74 So. 933, 199 Ala. 432, 1917 Ala. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodward-iron-co-v-keller-ala-1917.

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