T. L. Farrow Mercantile Co. v. Jeffers

*562 BRICKEN, J. This suit was brought byappellee against appellant to recover the sum of $200 as damages for the breach of the conditions of a detinue bond. There was judgment for plaintiff for $22.50. The defendant after judgment moved to set the same aside and dismiss the suit on thei ground that the plaintiff had recovered less than the jurisdictional amount, and that the amount had not been reduced by a set-off successfully made by the defendant, and that the statutory affidavit was not filed. The court overruled this motion, and this action of the court is made the basis of the only assignment of error insisted upon on this appeal. It appears, that this assignment of error is well taken. Black v. Ryan, 194 Ala. 667, 69 South. 633; Smith v. Allen, 142 Ala. 148, 37 South. 933; Buckner v. Vaught, 4 Ala. App. 593, 58 South. 813; O’Reilly v. Masterson et al., 3 Ala. App. 666, 57 South. 1013. Section 5355 of the Code of 1907 provides that, if a suit be brought for the jurisdictional amount, or above, and a less sum than the jurisdictional amount be recovered,' unless the amount is reduced below that of which the court has jurisdiction by a set-off successfully made by the defendant, the judgment must be set aside and the suit dismissed, unless the plaintiff, or some one for him, make affidavit, which must be filed in the case, that an amount of which the court has jurisdiction, stating the same, is actually due, and that a recovery for the true amount was prevented by failure of proof, the interposition of the statute of limitations, or some other sufficient cause, to be judged 'by the court. In the instant case it appears that every constitutent of the statutory prerequisite for the motion existed. The affidavit provided for by the statute was,not made. It follows that the judgment overruling the motion must be reversed, and a judgment will be here entered granting said motion, setting aside the judgment for plaintiff and dismissing the suit. Reversed and rendered.