McCarley v. White , 144 Ala. 662 ( 1906 )

DOWDELL, J.

This is a summary proceeding under section 3810 of the Code of 1896, commenced by the appellant against the appellee in the city court of Birmingham.

The case was tried by the court without a jury, and a judgment wa.s rendered in favor of the defendant, appellee here.

It is conceded by appellant’s counsel that as the court tried the case without a jury, and there being a conflict in the evidence, the conclusion or judgment on the facts ought not to be disturbed. But it is insisted that applying the law to the undisputed facts, the court should have rendered a judgment for the plaintiff.

The motion filed by the plaintiff takes the place of a complaint. In the motion there is an averment of demand and refusal. On this averment issue was expressly made up, and was tried as one of the issues in the case.

It was on the plaintiff or movant to prove the averment to entitle him to a judgment. The evidence on this issue was sharpely in conflict. The insistence of counsel for appellant is, that the evidence showed that no demand was necessary. The authorities cited in support of this contention are without application in the present case. In all of the cases cited the action was in assumpsit, where there was no averment in the pleading of a demand made before suit, and where such an averment was not necessary, though proof of a demand made before suit brought was required to entitle the plaintiff to recover, unless the proof showed that a demand was unnecessary; for instance, where the principal sues his agent in assumpsit on the common counts, and the proof shows that the agent had converted to his own use the funds of his principal.

The right -under the statute to the summary judgment is in terms predicated on a demand and refusal, and being averred must, when denied, be proven.

This view of the case dispenses with the necessity of considering any other question raised in the record, as ic is conclusive of the case as presented. It follows that the judgment appealed from must he

Affirmed.

Tyson, Simpson and Anderson, JJ., concurring.