Opinion
7 Div. 144.
June 9, 1932.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
T. Ben Kerr, of Piedmont, and Merrill, Jones, Whiteside Allen, of Anniston, for appellant.
Where a plea could be amended so as to properly state a defense without a departure, any defect of the said plea should be reached by demurrer to the plea and not by motion to strike, motion to strike being proper only where the pleadings are unnecessarily prolix, irrelevant, frivolous, or unnecessarily repeated. Sloss-Sheffield Steel Iron Co. v. Webb, 184 Ala. 452, 63 So. 518; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Tennessee Valley Bank v. S. M. Avery Sons, 9 Ala. App. 363, 63 So. 813; Berlin Mach. Works v. Ewart Lumber Company, 184 Ala. 272, 63 So. 567; Owensboro Wagon Company v. Hall, 149 Ala. 210, 43 So. 71; Karter v. Fields, 130 Ala. 430, 30 So. 504; Dalton v. Bunn Allison, 137 Ala. 175, 34 So. 841; Troy Fertilizer Company v. State, 134 Ala. 333, 32 So. 618; Beatty v. Hartwell, 217 Ala. 239, 115 So. 164; Mobile Light Railroad Co. v. Portiss, 195 Ala. 320, 70 So. 136; Wefel v. Stillman, 151 Ala. 249, 44 So. 203; Bryant v. Alabama Great Southern R. R. Co., 155 Ala. 368, 46 So. 484; Murphy et al. v. Farley, 124 Ala. 279, 27 So. 442. The right of amendment to the pleadings for every defect of form should be allowed to the parties during the progress of the cause where such amendment will promote the ends of justice and not work a surprise or an injustice on the adverse party. After trial of the cause is entered upon and the time for pleading has passed, the right of amendment is discretionary with the court; but this discretion should be liberally exercised to the end that justice may be done between the parties. Code 1923, §§ 9513, 9458, 9516; Robinson v. Darden, 50 Ala. 71; Ex parte North, 49 Ala. 385; Hanchey v. Brunson, 181 Ala. 453, 61 So. 258; Roden v. Capehart, 195 Ala. 29, 70 So. 756; Georgia Cotton Company v. Lee, 196 Ala. 599, 72 So. 158; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Twin Tree Lumber Company v. Ensign et al., 193 Ala. 113, 69 So. 525.
H. H. Evans, of Anniston, for appellee.
A plea may be stricken on motion where it is unnecessarily prolix, irrelevant, or frivolous, or unnecessarily repeated, or where the plea cannot be amended so as to state a good defense without a departure, or where it does not relate to the subject-matter. Code, 1923, §§ 5643, 9458; Alabama Great Southern R. Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76; Columbus W. Ry. Co. v. Bridges, 86 Ala. 448, 5 So. 864, 11 Am. St. Rep. 58; Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A. (N.S.) 748, 124 Am. St. Rep. 93; Sloss-Sheffield Steel Iron Co. v. Webb, 184 Ala. 452, 63 So. 518; Tenn. Valley Bank v. S. M. Avery Sons, 9 Ala. App. 363, 63 So. 813; Central of Ga. Ry. Co. v. Sims, 169 Ala. 295, 53 So. 826; Rooks v. State, 83 Ala. 79, 3 So. 720; Woodstock Iron Works v. Stockdale, 143 Ala. 550, 39 So. 335, 5 Ann. Cas. 578; J. H. Arnold Co. v. Gibson, 216 Ala. 314, 113 So. 25; 21 Ruling Case Law, pages 595 to 599. In order to review a ruling of the court on a motion to strike pleadings, the record proper of the trial court should show a judgment by the court, and an exception to such judgment should be shown by the bill of exceptions. Tenn. Valley Bank v. S. M. Avery Sons, 9 Ala. App. 363, 63 So. 813: Gaston v. Marengo Imp. Co., 139 Ala. 465, 36 So. 738; Lay v. Postal Tel. Cable Co., 171 Ala. 172, 54 So. 529, 531. Action of a trial judge, in refusing to allow defendant to amend pleas after the case is in progress and plaintiff has completed his testimony and rested his case, will not be disturbed on appeal unless the appellate court is clearly convinced that the action of the trial court was an abuse of discretion amounting to failure of justice. Foster v. Bush, 104 Ala. 662, 16 So. 625; Sovereign Camp, W. O. W., v. Dennis, 17 Ala. App. 642, 87 So. 616; Walker v. English et al., 106 Ala. 369, 17 So. 715; L. N. R. Co. v; Wynn, 166 Ala. 413, 51 So. 976; Leader et al. v. Mattingly, 140 Ala. 444, 37 So. 270; section 9513 of 1923 Code of Alabama; 21 Ruling Case Law, pages 572 to 576 inclusive; section 9516 of 1923 Code of Alabama; Jones v. Ritter's Adm'r, 56 Ala. 270; Hanchey v. Brunson, 181 Ala. 453, 61 So. 258.
This is an action of assumpsit on a promissory note, and the complaint is substantially in the form prescribed by the statute, alleging that the note was "made by the defendant."
The defendant interposed, among other pleas, the following: "2. The defendant further pleads and says that a part of the consideration of the note sued on is for gasoline and oil sold by the plaintiff to certain third parties and charged to defendant, and after defendant had given plaintiff notice not to sell said third parties gasoline and oil on his account or credit."
This plea, on the motion in writing of the plaintiff, with all other pleas except the plea of "not guilty," was stricken from the file, and on the trial the defendant offered to amend his pleas and the court declined to allow the amendment for the reason, to use the language of the bill of exceptions: "The Court: We can't do that now. We have a pleading week and we cannot allow pleadings to be settled when we have a jury here. To this action of the Court the defendant duly and legally excepted."
Said plea 2, though it may be conceded that it is demurrable, it is not frivolous, irrelevant, or prolix, and the court erred in granting plaintiffs motion and striking the plea from the file. Brooks v. Continental Insurance Co., 125 Ala. 615, 29 So. 13. This ruling is subject to review without exceptions being reserved. Code 1923, § 9459.
The court erred also in refusing to allow the defendant to amend the plea. Code 1923, § 9513.
The defendant proposed to offer evidence going to show that, after the defendant gave the plaintiff personal notice not to sell; to truck or bus drivers in defendant's employ, gas and oil on defendant's account, such sales were made and the price thereof entered into the consideration of the note, which was given by the defendant without knowledge that such items were included in the consideration of the note. This evidence was rejected, and properly so, in the absence of special plea setting up partial failure of consideration. However, the execution of the note would not constitute a ratification of the sales made by plaintiff to such drivers after notice not to do so, in the absence of knowledge on the part of defendant that the account closed by note embraced such items. The facts which the defendant proposed to prove would have been admissible under an appropriate plea of partial failure of consideration. Therefore, we cannot affirm that the rulings of the court in respect to defendant's plea were error without injury.
The general issue in actions of assumpsit "is an averment that the allegations of the complaint are untrue." Code 1923, § 9470.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.