Louisville & Nashville Railroad v. Johnson , 135 Ala. 232 ( 1902 )

DOWDELL, J.

This suit was commenced in the justice' court and appealed from that court to the circuit court, where it was tried without the intervention of a jury and judgment rendered for the plaintiff.

The judgment in the circuit court shows that the plaintiffs demurrer to the defendant’s plea No. 2 was sustained by the court, but the record also shows that the plaintiff filed a rcyucation.to plea No. 2, and that a demurrer was interposed to this replication, which fin-court overruled. This apparent conflict can only be reconciled upon the theory, that; the plaintiff waived the benefit of the court’s action on his demurrer to the plea and made replication thereto, and this was recognized by the defendant in its subsequent pleading. In the order of pleading, the replication to the plea was necessarily subsequent to the demurrer to the plea, and the judgment shows a ruling by the court on a demurrer interposed by the defendant to the replication. No injury resulted to the defendant, as the demurrer to the plea and the court’s judgment -were abandoned and waived.

Special replication No. 2 filed to special plea No. 2, did not deny tlie averments of that plea, nor did it contain matter in confession and avoidance of the defense set up.' It was, therefore, no answer to' the plea, and the court erred in overruling the defendant’s demurrer to the replication.

There was no error in overruling the objections to the questions asked che several witnesses as to the population'of the town of Blocton. This was a fact in issue competent to be'shown by any witness having a knowledge of the fact.

The statute, section 4224, makes no disinctiou between towns and cities incorporated, and those not incorporated.

For the error pointed out the judgment will be reversed and the cause remanded.