Hart v. Turk , 15 Ala. 675 ( 1849 )

COLLIER, C. J.

The act of 1819, declares, that in case's of appeals from judgments of justices of the peace, the court before which such appeals shall be brought, shall proceed to try the same, according to the justice and equity of the case, without regarding any defect in the warrant, capias, summons, or other proceeding of the justice of the peace, before whom the case was tried. We have always considered this a very beneficial enactment, and instead of restricting its terms, have given to them a just and liberal interpretation. Perry v. Brown, Minor’s Rep. 57; Gayle v. Turner, ib. 204; Spann v. Boyd, 2 Stew. Rep. 480; Rutledge v. Rutledge, ib. 400; Hagan v. Thompson, 2 Port. Rep. 48; Harrison v. Dannelly, 5 Port. Rep. 513; Munf v. Harding, 6 ib. 121: McCrory v. Smith, 1 Ala. Rep. 157.

In Cothran et al. v. Weir, 3 Ala. Rep. 24, the damages in the statement filed on appeal to the county court, were laid at $100. This court said, “it is the amount of the recovery, and not the sum claimed, which settles the question of jurisdiction.” So in Bentley et al. v. Wright, 3 Ala. Rep. 607, it was held, that an appeal should not be dismissed by the circuit court, because the judgment of the justice of the peace was for a sum beyond his jurisdiction ; it was added, that if the defendant controverted the authority of the justice, he should have pleaded in abatement, that the suit was instituted before a tribunal having no jurisdiction of the case.

It has been repeatedly decided by this court, that the act of 1824, abolishing special demurrers, does not apply to pleas in abatement, and that formal defects in such pleas are reached by general demurrer. Elmes v. McKenzie, 5 Ala. Rep. 617; Casey v. Cleveland et al. 7 Port. Rep. 445.

In Coalter v. Bell, 2 Stew. & P. Rep. 358, it was decided, where the facts averred in a plea in abatement do not appear upon the record, an affidavit should be made of their truth; and if they are not verified, a demurrer to the plea should be sustained. See also Olds v. Sargent, 1 Stew. Rep. 37; Caldwell v. Br. Bank Mobile, 11 Ala. Rep. 549.

The proper course for the plaintiff to pursue, where the defendant pleads both in abatement and bar, is, to move to strike out the former, or to treat it as a nullity — as tacitly waived or superseded by a plea to the merits. Wilson v. Oliver, 1 Stew. R. 46; Cleaveland et al. v. Chandler, 3 Stew. Rep. 489; Sadler v. Fisher’s adm’r, 3 Ala. Rep. 200.

The first plea alleges, that the summons issued by the justice, shows, that more than $50 were sued for; to wit, $97 27. In the second, it is averred that the amount for which the suit was brought, was more than $50 at the time the suit was instituted. The first plea is defective, if for no other reason, in making the summons, the test by which the question of jurisdiction is to be determined. We have seen, that the defects in the proceedings before the justice, cannot prejudice a trial on the merits in the circuit or county court, and they will not be looked to as furnishing an indicia of the amount sought to be recovered. These remarks are applicable to the second plea, which assumes the want of jurisdiction, by a reference to the sum for which the suit was brought. In addition to these defects, both pleas are altogether objectionable, in not being pleaded with the appropriate beginning and conclusion, as well as the want of an affidavit of their truth. Such a mode of verification is indispensable, as their truth is not affirmed by any part of the record, to which we are permitted to refer. The judgment is consequently reversed, and the cause remanded.