Quarles v. Waldron

PHELAN, J. — On the question of the competency of Mr. Sellers as a witness for plaintiffs below, tbe cases of McGehee v. Hansell, 13 Ala. 17, and Morrow et al. v. Parkman et al., 14 Ala. 769, are conclusive. On grounds of public policy, an attorney may be examined as a witness for his client in a cause in which ho is employed, if he has no other interest in the event of the suit than such as concerns his fees, when these are not contingent. Was the demurrer of the defendant below a plea to the merits, within the terms of the condition imposed by the court on setting aside the judgment by default? A plea to tbe merits is one that goes to the substance of the action, and if successful will bar any future action founded upon the same cause of action. Had the declaration in this case shown, by proper averments, tbat the contract for board, &c., was made by defendant with the wife dum sola, or that she was in any way the meritorious canse of action, the [219] demurrer must baye been oyerruled. And bad judgment been giyen for the defendant in this action on the demurrer, and plaintiffs bad brought another action, and fileda declaration containing the averments, which were wanting in this to make it good, the judgment on the demurrer, in this action, would have been no bar to a recovery in such subsequent action. This test will sufficiently show, that the demurrer in this case was not a plea to the merits, and therefore the court properly rejected it, under the conditions imposed on the defendant in setting aside the judgment by default, that he should plead to the merits. In support of the principles above stated, see Gould P. 478; 1 Chitty P. 198; Perkins v. Moore, 16 Ala. 17. Ther is no error in the record, and the judgment below is affirmed.