Linam v. Jones , 134 Ala. 570 ( 1901 )

DOWDELL, J.

The appellee, plaintiff in 'the court below, sued out an attachment as landlord for the collection of rent. The suit was, begun in the justice! of the peace court, in which court the plaintiff recovered a judgment, and the defendant appealed to, the circuit court In the circuit court the defendant sought, for the first time to quash the writ of attachment on motion and also on plea,, on account of defects in, the affidavit upon which the writ. Avas issued!. No objection having been raised in the justice court to defects in the suing out of the attachment, on appeal they are considered as having been waived. Berth tho motion to quash the writ and the plea in abatement, came too late.. — Staggers v. Washington, 56 Ala. 225; Horton v. Miller, 84 Ala. 539.

The regular, and proper course with the motion to quash would have been for tho court upon consideration to have, overruilcd the motion, but. as no injury resulted in striking the motion to, reversible error was committed1. The motion to strike the plea, in abatement was proper and the court rightly ruled in sustaining' the motion.

In answer to the complaint the defendant filed six pleas, the .first being the general issue, the second setting up the statute of frauds, and the 3d, 4th, 5th and 6th setting up special matters in avoidance. To the 3d, 4th, 5th, and 6'th pleas, the plaintiff filed a. special replication.. Thorp were no- demurrers interposed to the special pleas, nor to the special replication. The issues as made up by the pleadings, were1 on the- 1st andl 2d. pleas to the complaint, and on the replication to the 3d, 4th, 5th and 6th pleas.

The evidence, without conflict, showed a renting of the land hv the plaintiff to the. defendant and the amount of the rent in cotton, its value: and that the same was due, the only dispute being as to whether the rent contract was made shortly after the month of April, as the plaintiff testified, or in the: month of October as the defendant testified. Whether the rent, contract, between the plaintiff and defendant, was made in April or October to pay the year’s rent, in consideration of defendant’s remaining on the land was of no. consequence, and the consideration was sufficient to support the contract. The promise to' pay the rent in consideration of the defendant’s retaining the possession of the land for the balance (if the year, was an independent and original undertaking by her, and the statute of frauds is without application.

The rule is well settled that parties may try their cases on immaterial issues, if they see proper1 to1 do so., and whore a, plea or replication sets up1 immaterial matter, and issue is joined on such plea or replication, evidence which tends to support or defeat the plea or replication is relevant and if competent is admissible. The special replication of the plaintiff to defendant’s special pleas, on which issue was joined by the defendant,' raised the question of the plaintiff’s owner'ship of the land, and under this issue it ivas permissible for the defendant to show that the plaintiff did not own the land, but there iva» no. error in- excluding on plaintiff’s motion the. deed offered by the defendant as- it was not shown, nor was it offered to be shown, that the land .embraced in the deed was the land embraced in the rent contract.

It is insisted by appellant’s counsel that under the 5th plea, the court erred in not permitting the defendant to prove that she had paid the rent to a third party. In the first place this averment in the15th plea presented an immaterial issue, yet, under the rule, if the plaintiff had taken issue on the plea, the evidence would have been competent, and relevant, and the exclusion of it would have, constituted reversible error. The plaintiff, however, did not take issue on this plea, but replied specially and in his replication ignored this- averment of the plea, and the defendant without demurring joined issue on the replication, and by so doing the averment in defend ant’s plea of payment of the rent was no longer an issue under the pleadings, and consequently no- reversible error was committed in excluding this evidence.

The complaint, however, does not state a cause of action. The cotton is claimed as rent of land, and could not be. recovered in. detinue because plaintiff has no title. — Scarbrough v. Rowan, 125 Ala. 509. Of course the cotton could not be recovered in "assumpsit. The eom.plaint shows, no breach of any contract for the delivery of the cot-ton and therefore no recovery could he had1 for the value of the cotton. — Ragland v. Wood, 71 Ala. 145. The complaint failing to state a substantial cause of action, there is. nothing upon which to rest a verdict and judgment. — Code of 1896, § 3333; L. & N. R. R. Co. v. Williams, 113 Ala. 402; St. Clair County v. Smith, 112 Ala. 347; Marion v. Regenstein, 98 Ala. 475; Thomas v. Stepney, 58 Ala. 365; Bender v. Meyer, 55 Ala. 576; Taylor v. Jones, 52 Ala. 78; Kelly v. Moore, 51 Ala. 364; Winnemore v. Matthews, 45 Ala. 449; Douglas v. Beasley, 40 Ala. 142; Childress v. Mann, 33 Ala. 206. Moreover, the complaint claims in the alternative, “twelve hundred pounds of lint cotton, or its alternative value, one hundred and eight dollars, the rent of a tract of land” etc. andl in so doing, it cannot he said to he a claim for either the cotton in specie or the money.

The judgment will he reversed and the cause remanded.