Cross v. Esslinger

McCLELLAN, C. J. The appellant is in no plight, to have this court review the rulings of the circuit court on his demurrer to the special pleas and on the motion of defendant to strike his replications to said special pleas. The demurrer to the special plea having been overruled, and the replications to said pleas having been stricken, there was left in the case defendant’s pleas of the general issue and special pleas 2 and 3. Plaintiff then declined to take issue on the special pleas- and took issue on the plea of the general issue. Whereupon a jury came, but, as the judgment entry shows, the plaintiff offered no evidence in support of his complaint, and verdict of course went for the defendant on the plea of the general issue, and judgment was entered accordingly. The plaintiff should have taken issue not only on the plea of the general issue, but also on the special pleas, and should have proved his complaint under the general issue and thereby put the defendant to proof of the special pleas. It is of no consequence that the plaintiff considered that the defendant would recover on the special pleas, however fully the case might be made out for plaintiff on the general issue. The circuit court could not know this in the absence of evidence, nor can Ave. The case stands here essentially as if the plaintiff had declined to take issue on the plea of the general issue as well as upon the special pleas,- and the legal presumption in both cases is that the plaintiff could not prove the cause of action laid in the complaint, that the defendant was entitled to judgment on his denial of that cause of action — the general issue; [411] and tlie conclusion is that, inasmuch as plaintiff had no cause of action, he was in no sense or degree injured by the rulings on the demurrer to the special pleas and the motion to strike the replications, be those rulings never so erroneous. — Andrews v. Hall et al. 132 Ala. and cases there cited. Upon the foregoing considerations, the judgment of the circuit court must be affirmed.