Home Protection v. Caldwell Bros. , 85 Ala. 607 ( 1888 )

SOMEBYILLE, J.

The action is one on a policy of fire-insurance, brought by the appellees against the appellant corporation, which is a fire-insurance company. Certain pleas were filed, but the defendant failed to appear to sustain them on the trial. The court, without making up a formal issue, proceeded with the trial of the cause, and verdict and judgment were rendered for the plaintiffs.

The statute provides, that “no judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.” Code, 1886, § 2835. The most cursory examination of the complaint filed in the present case, not only shows the disclosure in it of a substantial cause of action for the wrong complained of, but the complaint itself seems to contain every essential averment required by the form prescribed by the Code for an action on a policy of fire-insurance. — Code, 1886, p. 792, Form No. 13; Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538.

It is manifest that an action on such a policy, which is a contract for indemnity against loss by fire, is not “founded on an instrument of writing ascertaining the plaintiff’s demand,” within the meaning of the statute (Code, 1886, § 2740)-, and that it would have been error to render judgment final by default, or by nil elicit on it, without the intervention of a jury to ascertain the amount of plaintiff’s damages. — Manhattan Fire Ins. Co. v. Fowler & co. 76 Ala. 372.

It was clearly proper, therefore, that the court should have submitted to the jury, in some form, the determination of the value of the plaintiffs’ property, alleged to have been destroyed by fire, which was the measure of their loss. The more formal mode of procedure in such cases is, to call the defendant, and, if he fail to appear in person, or by counsel, to sustain his pleas, then for the court to have a jury impanelled to try the issues on these pleas, in the same manner as if the defendant had appeared and defended the cause. Harris v. Muskingum Man. Co., 29 Amer. Dec. 372; Lehman v. Hudmon, 84 Ala. 135. But a judgment by default, ignoring pleas not required to be verified by affidavit, followed by a writ of inquiry, where one is necessary and proper, would not have been reversed on error; for the irregularity is one which could work no injury to the defendant. — McCoy v. Harrell, 40 Ala. 232, 235; Dougherty v. Colquitt, 2 Ala. 337.

Nor would it be error for the court to try such an issue, in the absence of a formal issue, or replication by plaintiffs to the pleas. In ordinary practice, while it is always within the power of the defendant, or of the plaintiff, to compel the opposite party to reply, or take issue, at any stage of the proceedings, at the hazard of a judgment of non pros, or default, if he refuse or fail to do so, it is not customary to exact such a formal procedure; and it is well settled, that the failure to do so will not operate to reverse a judgment on error, after verdict and judgment, where the objection is' raised for the first time in the appellate court. — Abercrombie v. Mosely, 9 Port. 145; s. c., 5 Smith’s Cond. Rep. 441. The uniform practice of this court has always been, to presume, when the record is silent, that the general issue was pleaded by the defendant, or that the plaintiff took issue on the defendant’s pleas, where the cause went to trial regularly in other respects by jury and verdict. ■

The judgment-entry, it is suggested, fails to show that the defendant was formally called, before the court proceeded to enter upon the trial of the cause. This was unnecessary, as it was required of the defendant that he should have been present in open court, in person or by counsel, when the cause was regularly reached on the docket, and called for trial. It is optional with the trial court to have the defendant or his counsel called in such cases, and the failure of tbe record to recite such fact is a defect of form and not of substance, and is cured after final judgment, by-section 2835 of tbe Code, above cited.

These principles dispose of tbe first six assignments of error urged by appellant’s counsel, which we bold not to be well taken.

Tbe last assignment is based upon tbe fact, that tbe legal title of tbe goods insured against fire was not in the plaintiffs, but in one Europe H. Caldwell, as trustee for their benefit. This objection clearly goes only to tbe question of tbe plaintiffs’ insurable interest in tbe property destroyed, tbe policy of insurance itself having been assigned to tbe plaintiffs in writing, by consent of the defendant company, at tbe time tbe plaintiffs purchased tbe goods insured. Tbe objection is without merit, as a mere qualified or equitable interest in property is an insurable interest. Tbe possession of tbe legal title by tbe insured is entirely unnecessary, except in certain cases, as affecting tbe question of warranty, which is not raised in this case.— Warren v. Davenport Fire Ins. Co., 31 Iowa, 464; s. c., 7 Amer. Rep. 160; Turner v. Stetts, 28 Ala. 420.

We discover no error in tbe record, and tbe judgment must be affirmed.