Walker v. Winn , 150 Ala. 173 ( 1907 )

TYSON, C. J.

This is an action upon'a promissory note. A number of defenses were interposed by special pleas. Among the pleas was one which imposed upon the plaintiff the burden of proving his intestate’s ownership of the note. The others invoked matters of defense of an affirmative character imposing upon the defendant the burden of proving the matters alleged in them as a defense to the action. To some of these latter pleas there was a general replication, and also special replications. To the special replications a demurrer was interposed, and as to those numbered 8, 9, and 10 the demurrer was overruled, and as to1 the others sustained. To the special replications, 8, 9, and 10 there were special rejoinders, to which a demurrer was sustained. Issue being joined upon the several pleas of defendant and the special replications, upon the conclusion of the testimony the trial court gave the genera! affirmative charge in writing for the plaintiff.

Complaint is here made that error was committed by the trial court in its several rulings upon the demurrer to the special replications numbered 8, 9, and 10, and to the rejoinders thereto, a,s well as the giving of the written charge at plaintiff’s request. The bill of exceptions purports to set out all the evidence introduced upon the trial. No testimony was offered by the defend" ant whatever. There is not a scintilla of testimony tending to support the special pleas to which replications 8, 9, and 10 were interposed as a reply; and clearly, as there was a general replication to each of them, denying their averments, the plaintiff was not put to proof of his special replications, ancl, indeed, there was no proof or offer to prove one of the material facts alleged in each of them, to-wit, that defendant was a surety upon the note sued upon. This being true, the giving of the charge must have been predicated upon the fact that the plaintiff had sustained the burden which was upon him of making out a prima facie case, which he did, and which was in no wise disputed by the testimonio inferentially or otherwise. It therefore follows that, if error was committed in any of the rulings upon the pleadings, it was without injury.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.