Alexander v. Moore & Kornegay , 111 Ala. 410 ( 1895 )

HEAD, J.

The circuit court was authorized in its discretion to require the payment of the costs of the cause, as a condition upon which the continuance would be granted, and to stipulate that in default of such payment by the first day of the next term of the court, judgment by default would be rendered against the defendants; acceptance of the continuance was an assent to the terms upon which it was allowed. — Maund v. Loeb, 87 Ala. 374; Waller v. Sultzbacher, 38 Ala. 318.

Section 2773 of the Code authorizes the admission in ■evidence, under certain circumstances, of an itemized statement of the account sued on, verified by the affidavit of a competent witness, taken before and certified by an officer having authority under the laws of this State, to take and certify affidavits. We have held that an averment in the complaint that the account is verified by affidavit is, in substance, an indorsement on the summons and complaint, as required by that.section (Lunsford v. Butler, 102 Ala. 403) ; and it may be conceded that the averments in the complaint, in. this case, are sufficient to entitle the plaintiffs, in the absence of a sworn denial, to prove their demand by an itemized account, duly verified according to the statute. The difficulty here is, that the plaintiffs offered no such account nor any other evidence of the amount of their claim. They undertook, merely, to give secondary evidence of the contents of an account filed with the clerk, at the institution of the suit, and which had been lost or mislaid.

The act of January 16th, 1879, (Acts, 1879-80, p. 154), required the account to be filed with the clerk at the commencement of the suit, but section 2773 of the Code, does not contain that provision. Now, it is sufficient to give notice to a defendant of the purpose to offer a verified account at the trial, by making the statutory, indorsement on the summons and complaint, or the equivalent averment in-the complaint, and under said section we see no reason why the account, in a proper case, would not be admissible, although verified after the bringing of the action. If a plaintiff should at or before bringing suit have a verified • account, and it should subsequently be lost, or mislaid before the trial, he ha,s only to procure another. . We do not think the account the plaintiff may happen to have, when he sues, is to be treated as a note or other contract — the basis of the .suit — whose contents must be proven, if lost or destroyed. A verified itemized account is merely an instrument of evidence, allowable in a particular case to establish certain facts, otherwise provable only by witnesses. — Gainer v. Pollock, 96 Ala. 554.

But, if it should be admitted that upon satisfactory proof of the contents of the lost account and of the verification thereof, the jury would have been authorized to act upon such evidence, we are forced to hold that the evidence of the clerk and plaintiff’s attorney was insufficient to justify the charge which the court gave. There was a total failure of proof of the contents of the account. It was not shown that it was verified before any officer authorized under the laws of this State to take and certify affidavits, nor when the account accrued, nor when it became due, nor what the substance of the verification was. Enough was not proven to show that the accouflt, if produced, would have established the plaintiff’s claim. — Enis v. Harris, 103 Ala. 330. The court erred in charging the jury, if they believed the evidence to find a verdict for the p aintiffs for the amount claimed in the complaint, with interest thereon.

Reversed and remanded.