Reese v. Fuller , 132 Ala. 282 ( 1902 )

McCLELLAN, C. J

— All of tlie counts of the complaint as originally filed were in assumpsit for money bad and received. Under counts 1, 2, 4 and 5 the plaintiff had all the rights he would have liad under counts (5 and 7, nor was he subjected to any greater burdens under the first four than would have been upon him under the last two counts of the complaint. If the court sustained demurrers to counts 6 and 7 which it should have overruled, the ruling involved no prejudice to the .plaintiff. Whether such demurrers were sustained, however, we are not advised, since there is no judgment in the record upon them. We cannot look to the mere statement, which does appear, that these demurrers were sustained. But it is properly shown that these counts were offered to be filed at a subsequent term as amendatory of the complaint and that the court refused to allow such amendment. Upon the considerations adverted to above this action involved no injury to the plaintiff below.

Much the same may be said in respect to the pleas and the alleged action of the court upon them. “Not guilty” was an improper plea, but it did the plaintiff no harm, and he ivas not hurt by the failure of the court to strike it or to hold it bad on demurrer. The proper plea would have been a denial of the allegations of the complaint; but as the case was heard on a plea that the defendant did not owe the plaintiff the sum claimed or any amount as it would have been tried on the general issue interposed in the statutory form, plaintiff could not have been injured by the overruling of his demurrer to and motion to strike said plea.

The evidence adduced on the trial below together with the evidence there offered by the plaintiff — the defendant offered none — and excluded went at the most to show only that the defendant received money from the plaintiff in payment of the debt plaintiff owed Williams & Son, defendant being their assignee, with the agreement and understanding that in case plaintiff’s indebtedness to Williams & Son should be subjected by the garnishment proceedings then pending to the- satisfaction of tbe debt due Friedman Bros. & Shafer from Williams & Son, the defendant should pay the money to said Friedman Bros. & Shafer, the plaintiff in garnishment, that there was a judgment in the suit of Friedman Bros. & Shafer against Williams & Son for an amount greater than the sum held by the defendant and a judgment in the garnishment proceedings against Reese, the plaintiff here, for a sum equal to that held by defendant with interest, and that said judgment in garnishment has not been paid. Upon this state of facts the defendant Fuller is still under duty and has the right to pay the money in question bn the judgment recovered against Reese as garnishee in the other action: Indeed it is money had and received by him to the use of Friedman Bros. & Shafer and they might recover it of him. Had Reese, plaintiff here, been forced to pay that judgment he would have had a cause of action against Fuller. Not having paid it he has none; and the court properly gave the affirmative charge at the request of defendant. As this conclusion is reached upon the assumption that all the evidence offered by plaintiff was admitted, it is plain that if the court erred in excluding certain evidence offered by plaintiff, it was error without injury.

Affirmed.