Sims v. Herzfeld

WALKED, J. 1. Tbe suit was upon two judgments alleged to bave been recovered by tbe plaintiff against a partnership of wbicb tbe defendant was a member. Tbe defendant did not, either by bis demurrers or by bis pleas, raise tbe question as to bis individual liability upon a judgment against bis firm alone. In tbe count added by tbe amendment there are allegations in reference to tbe contracts upon wbicb tbe judgments were recovered, wbicb are not material to tbe cause of action upon tbe judgments themselves. No objection, however, was interposed in any way to tbe presence in tbe complaint of these superfluous allegations. Qne ground of demurrer to tbe complaint was, that it failed to describe with sufficient accuracy tbe contract upon wbicb tbe judgments were rendered. The judgments [146] themselves were sufficiently described, and there was no necessity of setting out any description at all of the contracts upon which they were rendered. The complaint as amended was not a departure from the original. The additional count sets out more in detail the cause of action described in the original complaint, but no misjoinder of counts was ■ effected by the amendment. There is no merit in the demurrer to the complaint. 2. If the state of facts set up by the defendant’s first plea was ever available as a defense against the claims which had been reduced to judgment, such defense should have been made in the suits in which the judgments were recovered. The judgments are conclusive of all defenses which could have been urged against the demands before the rendition of judgments upon them. The demurrer to this plea was properly sustained. — Cook v. Parham, 63 Ala. 456; Mervine v. Parker, 18 Ala. 241; 2 Brick. Dig. 145. 3. If there was error in sustaining the demurrer to the second plea, it was error without injury to the defendant; because, under the fifth pl..a, the demurrer to which was overruled, he had the advantage of the same issue which he sought to present by the second plea. He had the full benefit of his denial of the existence of the judgments alleged in the complaint. — Phoenix Ins. Co. v. Copeland, 90 Ala. 386; Capital City Water Co. v. National Meter Co., 89 Ala. 401. 4. Even if the plea of failure of consideration was available in an action on a judgment, the plea to that effect in this case was defective in failing to state the facts showing the substance of the matter relied on as a defense. — Carmelich v. Mims, 88 Ala. 335. There was no constat to accept the pleas in short. 5. The evidence in reference to the judgments, and to the contracts upon which they were recovered, corresponded with the allegations of the complaint as amended. Some of the allegations were superfluous, as has been already indicated. Some of the evidence which was objected to might have been inadmissible, if immaterial issues had been excluded from the case, or if the defendant had availed himself of objections which might have been made under a different state of the pleadings. The third and fifth pleas, upon which alone issue was joined, were mere denials that the judgments sued on were obtained on notes in which the defendant waived his exemptions, that there was such waiver in said judgments, and that such judgments as were alleged in |the complaint were obtained against the partnership of [147] Marable & Sims at tbe August term, 1890; of said court. If no proper steps are taken by tbe defendant to eliminate false issues presented by tbe complaint, evidence may be received to support tbem, and tbey may be submitted to tbe jury. — McKinnon v. Lessley, 89 Ala. 625; Allison v. Little, 93 Ala. 150. Tbe evidence was directly pertinent to tbe allegations of tbe complaint, and as it supported tbem and was wholly uncontroverted, tbe defendant could not bave been injured by tbe action of tbe court in giving tbe general charge requested in writing by tbe plaintiff. Affirmed.