McCord v. Harrison Stringer

SOMERVILLE, J. It is well settled by the decisions of this court that, when a defendant pleads an affirmative plea, as to which he has the burden of proof, and fails to appear and sustain it, and the judgment entry recites that the defendant “says nothing further in bar or preclusion of plaintiff’s right to recover,” judgment may be rendered as though no plea were on file. McCollom v. Hogan, 1 Ala. 515; Dougherty v. Colquitt, 2 Ala. 337; McCoy v. Harrell, 40 Ala. 232; Home Protection, etc., v. Caldwell, 85 Ala. 607, 5 South. 338; Schwarz v. Oppenheimer, 90 Ala. 462, 8 South. 36; Hutchison v. Powell, 92 Ala. 619, 622, 9 South. 170; Brandon v. Leeds State Bank, 186 Ala. 519, 65 South. 341; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 South. 249. In the instant ease, the court heard testimony adduced by plaintiffs, and on that testimony adjudged that they were entitled to recover. Under the recitals of the judgment entry — in the absence, at least, of a bill of exceptions showing something to the contrary— it must be conclusively presumed that the venue plea was waived by the defendant; and, further, that, even if it were not waived, there was no evidence to sustain it. McCollom v. Hogan, 1 Ala. 515; Hutchison v. Pow *482 ell, 92 Ala. 619, 622, 9 South. 170; and other cases, supra. On the record before us, we are bound to hold that the judgment in question was free from error. We do not overlook the contention of appellant that count A of the complaint, added ’by amendment, showed by express allegation that defendant was a resident of Ooosa county, and, that therefore, the complaint in effect confessed the venue plea on file, and relieved defendant of the burden of proving it. This contention, however, is manifestly unsound, for the reason that each count of the eomplaint is separate and complete, and admissions made in one count are not applicable to other counts, and cannot be visited upon them. Hence, as to counts 1 and 2, defendant had still the burden of allegation and proof with respect to the matter of venue, exactly as though count A had never been filed. Since venue may be waived by a failure to plead the objection, a venue plea may, like any other plea, be waived by a failure to appear and insist upon it when the case is called for trial. The first ground of the motion to set aside the judgment is without merit. “It was the duty of defendant and of defendant’s counsel to know when, under the rules of the court, its [his] case would be called for trial, and to attend at that time with its defense, or some cause for continuance, prepared for submission to the court.” Eminent Household of Columbian Woodmen v. Lockerd, 202 Ala. 330, 80 South. 412. And the other three grounds are invalidated by the principles already stated above. Conceding, therefore, without deciding, that the motion had not abated as ruled by the trial court, nevertheless, had it been considered on its merits, it must have been overruled, and defendant was none the worse off because of the mode or ground of its denial, and hence he cannot complain of prejudicial error in that regard. We find no error upon which to base a reversal of the judgments complained of, and they will- therefore be affirmed. Affirmed. ANDERSON, C. J., and McCDELLAN. and THOMAS, JJ., concur.