Golden v. Conner

CLOPTON, J. It appears from the record, that the complaint, as originally framed and filed, counts upon an account for goods and merchandise sold to defendant during the year 1884, and also contains an averment of a waiver of exemptions. Though leave was twice granted by the court to the plaintiff to amend his complaint, the record does not show that any amendment was in fact made. We find nothing from which to determine whether the leave to amend was properly, or improperly granted; but, if erroneous, no amendment having been made, the error is without injury. The purpose of the statute requiring a waiver of exemptions to be averred in the complaint is, that the defendant may join issue thereon, and controvert the fact. If his plea is limited to the mere denial 'of such averment, and his contestation is sustained, the only consequence is, tha* the judgment will not contain a recital of the fact of waiver; but the plaintiff may, nevertheless, have judgment for the debt and costs.—Goetter, Weil & Co. v. Pickett, 61 Ala. 387. If conceded that an averment of a waiver of exemptions can not be made in a complaint containing only the common counts, as to which we express no opinion, a demurrer to the complaint is not the proper mode to reach the objection. It is sufficient, without such averment, to support a judgment for the debt. The defendant may protect himself by a motion to strike out, or by objection to its introduction in evidence, or to the recital of the fact being incorporated in the judgment. [602] There are circumstances and conditions under which the court will order the production of papers or books for inspection, but this case does not fall within the rule. "While a failure or refusal by a party to a suit to produce writings or books upon notice, may produce a prejudicial effect in the minds of the jury, or the court, the legal consequence of such failure or refusal is to entitle the other party to give secondary evidence of their contents. The court will not order their production, to be used as evidence against the party having possession, and to whom they belong.—Cooper v. Gibbons, 3 Camp. 362; 1 Taylor’s Ev. 138. We do not see how any question as to appropriation of payments arises on the evidence. The account introduced in evidence by the plaintiff, and‘furnished defendant, is a running account, consisting of advances made and payments received, the debts and credits being blended; in such case, the different parts have no separate existence, but the balance only is considered due. All the items of the account seem to be equally secured by the mortgage given by the defendant to plaintiff, and there is no pretense that any special • appropriation of the payments was made by either party. "When payments are made on a running account, in the absence of special application by the parties, and of other circumstances showing a different intention, they will be applied to the charges in the order of time in. which they accrued.—Harrison v. Johnston, 27 Ala. 445; Moses Bros. v. Noble, 86 Ala. 407. The charges requested by defendant are either abstract, argumentative, or misleading. Affirmed.