Opinion
5 Div. 630.
October 26, 1926. Rehearing Denied November 23, 1926. Affirmed on Mandate June 30, 1927.
Appeal from Circuit Court, Lee County; S. L. Brewer, Judge.
Action by the Traders' Securities Company against C. C. Wooten. From a judgment for plaintiff, defendant appeals. Affirmed on authority of Wooten v. Traders' Securities Co., 216 Ala. 147, 113 So. 492.
Barnes Walker, of Opelika, for appellant.
In the absence of a demurrer thereto a plea of not guilty will be considered a plea of the general issue. Penna. Cas. Co. v. Mitchell, 157 Ala. 589, 48 So. 78; Snedecor v. Pope, 143 Ala. 275, 39 So. 318; Espalla v. Richard Son, 94 Ala. 159, 10 So. 137; 34 C. J. 165. Plea of the general issue to count or written instrument does not put in issue execution of instrument, and need not be verified. Blankenship v. Lanier, 212 Ala. 60, 101 So. 763. The effect of the plea of the general issue being to cast on plaintiff the burden of proving his cause of action, it was error to enter judgment for plaintiff merely submitting the amount of his damages to the jury. Wildsmith v. Graves, 209 Ala. 294, 96 So. 230; Clements v. Mayfield Woolen Mills, 128 Ala. 332, 29 So. 10. Where defendant pleaded the general issue, a judgment nil dicit cannot be rendered for defendant's failure to appear and sustain or insist upon his plea, although such failure would amount to a waiver of an affirmative plea. Barnard v. Irwin, 8 Ala. App. 544, 62 So. 963; Ex parte Irwin, 184 Ala. 666, 63 So. 1027.
Denson Denson, of Opelika, for appellee.
All indulgences will be taken in favor of the judgment, and error must be shown affirmatively to appear and, if shown, to be to the injury of appellant. Hanby v. Phillips-Buttorff Mfg. Co., 12 Ala. App. 543, 68 So. 477; Lake v. Gaines, 75 Ala. 143; Hall v. First Bank, 196 Ala. 627, 72 So. 171; Johnson v. Straus, 2 Ala. App. 300, 56 So. 755. Where pleas are filed and defendant appears and then does not insist thereon, the pleas are taken as withdrawn. Dearing v. Smith, 4 Ala. 432; Tunstall v. Donald, 15 Ala. 841. Whether the conduct of defendant's counsel amounted to a waiver of pleas was a question for the court to decide. McGhee v. Cashin, 130 Ala. 561, 30 So. 367. Defendant's pleas did not amount to the general issue, and none was appropriate to any count of the complaint. Code 1923, §§ 9470, 9471; Cunyus v. Guenther, 96 Ala. 564, 11 So. 649; Montgomery Fur. Co. v. Hardaway, 104 Ala. 100, 16 So. 29; Brandon v. Leeds Bank, 186 Ala. 519, 65 So. 341. There was no sworn denial of the execution of the instruments sued on. Code 1923, § 7858; Hershey Choc. Co. v. Yates, 196 Ala. 657, 72 So. 260; Tilson v. Graham, 208 Ala. 312, 94 So. 295.
Appellant, who brings this appeal on the record without bill of exceptions, was sued by appellee, the complaint containing counts based upon certain "trade acceptances," which we understand to be instruments in writing (Atterbury et al. v. Bank of Washington Heights of City of New York 241 N.Y. 231, 149 N.E. 841) as well as counts "on account" and on "account stated."
He duly filed, indorsing on same a demand for a jury trial, two pleas: (1) That he was not indebted, etc.; and (2) that he was not guilty, etc. There were no demurrers either to the complaint or to the pleas.
Thereafter, the case being regularly called, the appellant, being present in person and by attorney, said, according to the recitals of the judgment entry, "nothing in bar or preclusion of plaintiff's demands," whereupon a judgment nil dicit was rendered against him by the court and a writ awarded to ascertain by the jury plaintiff's (appellee's) damages.
In this we think the court erred. Without regard to appellant's plea (1), we may say, as was said in the opinion in the case of Pennsylvania Casualty Co. v. Mitchell, 157 Ala. 589, 48 So. 78:
"The plea of 'not guilty' was not a proper plea in this case; but, in the absence of a demurrer to it, it will be considered as a plea of the general issue." Espalla v. Richard Sons, 94 Ala. 159, 10 So. 137.
The effect of the plea of the general issue was to cast upon the plaintiff the burden of proving his cause of action, and it was not sufficient to submit to the jury the question of the amount of damages only. Wildsmith et al. v. Graves, 209 Ala. 294, 96 So. 230.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Affirmed on authority of C. C. Wooten v. Traders' Securities Co., 216 Ala. 147, 113 So. 492.