Smith v. Dick

WALKER, J. 1. The second count of the complaint follows substantially one of the Code forms for the common counts, the claim being for “one hundred dollars for a mule that plaintiff sold to the defendant.” In one of the Code forms the language is, “for merchandise, goods and chattels sold by the plaintiff to the defendant,” Ac.- — Code of 1886, p. 792. “The declaration or statement, in case of appeal from a justice of the peace, is not subject to the technical rules of pleading. If it shows in general terms a debt due, or contract to be performed and a breach, it is sufficient.” 1 Brick. Dig., 114, § 77; Western Union Tel. Co. v. Meyer, 61 Ala. 158. Certainly,' the second count of the complaint in this case conformed to this requirement, and the demurrer thereto was properly overruled. 2-3.- The demurrer to the fourth plea is not copied into the record. When the grounds of the demurrer do not appear, on the presumption in favor of the ruling of the primary court, its action in sustaining the demurrer will [313] be affirmed, if there be any sufficient cause of demurrer. Sessions v. Boykin, 78 Ala. 328. Tbe fourth plea was not an appropriate answer to the whole complaint. It was not so framed as to apply to the cause of action stated in the second count. 4. It is assigned as error that the judgment was for more than the amount claimed in the complaint, with interest thereon. The judgment was for the amount found by the verdict. The objection now urged was not made in the lower court. It can not be made on appeal for the first time. The remedy in such ease is by motion for a new trial in the court below, where the error may be cured by a release of the excess, or such other order made as the justice of the case may require. As the complaint contains a substantial cause of action, the judgment can not be set aside for a matter not previously objected to. — Code, § 2835; Rich v. Thornton, 65 Ala. 310; Government Street R. R. Co. v. Hanlon, 53 Ala. 70. Affirmed.