Moore v. Crosthwait

McCLELLAN, C. J. The defendant, Moore, waived a jury trial by failing to enter a demand therefor when he brought the case into the circuit court by appeal from the judgment rendered by the justice of the peace. It is no concern of his that the, plaintiff did not insist upon the demand for a jury which he entered on the appeal bond, and without objection went to trial without a jury. Even had plaintiff’s demand given the defendant any right in the premises, which it did not, he ■waived such right by submitting his case without objection to the judge of the court sitting without jury. The complaint in the circuit court contained three counts, each claiming seventy-five dollars; the first as upon an account stated, the second for the agreed-price of a horse sold by plaintiff to defendant on December 8th, 1897, and the third for the agreed price of a horse sold by plaintiff to defendant on March 8th, 1897. Pleas 1, 2, 3, 4 and 5 were interposed to the complaint as a whole, but those numbered 2, 3 and 4 only purport to answer several counts of the complaint. Moreover, the facts set up in them were available under the general [276] issue, plea 1. Plea 6 is but a repetition of the general issue presented by plea 1. Plea 5 sets up the statute of limitations of three years against the whole complaint, and plea 7 sets up the statute of limitations of three years against the first count claiming upon an account stated. The statute of limitations of three years is not a defense to either of the causes of action stated in the complaint. The court, on motion, struck out all the pleas but that of the general issue. We cannot review this action because it is not shown by the bill of excep-toins. None of the exceptions to the admission of testimony was well taken. The declarations of the defendant, to the admission in evidence of which objections were made and exceptions taken, were all properly received as de clarations of a party against his interest. They were in the nature of admissions by the defendant that he had purchased the horse from the plaintiff, which he denied in his pleading and on the stand as a witness, and it was not necessary to lay a predicate for their introduction as where the only office of declarations of a witness made out of court is to impeach his testimony in court. Only one of the several declarations adduced appears to have been intended as matter by way of impeachment. That was the declaration made to W. J. Jones. The predicate for it as a contradictory statement by Moore, the witness, was, we think, well laid; but the declaration as that of Moore, the party, was admissible without such predicate. The evidence tending to show the sale of the horse by plaintiff to defendant for an agreed price payable at an agreed time, or presently, tended to support the count as upon an account stated as well as the other counts of the complaint.—Ware et al. v. Dudley, 16 Ala. 742; Sheppard v. Wilkins, 1 Ala. 62; Battle v. Reed, 68 Ala. 149. That the complaint was proved was the conclusion and finding of the trial judge. We think that conclusion was correct on the evidence adduced, and the judgment thereon must be affirmed. Affirmed.