O'Reilly v. Masterson

WALKER, P. J. This was an action of debt for the recovery of the statutory penalty for destroying, injuring, or removing trees.—Code, § 6035; Higdon v. Kennemer, 120 Ala. 193, 24 South. 439. To such an action the statute (Code, § 5355), applies which requires that if a suit be brought on a moneyed demand “for an amount of which the court has jurisdiction, and a less sum be recovered, unless the amount is reduced by a set-off successfully made by the defendant, the judgment must be set aside and the snit dismissed, unless the plaintiff, or some one for him, make affidavit, which must be filed in the cause, that an amount of which the court has jurisdiction, stating the same, is actually due, and that a recovery for the true amount was prevented by failure of proof, the interposition of the statute of limitations, or some other sufficient cause, to be judged of by the court.” The suit was for an amount of which the court had jurisdiction, but the plaintiffs’ recovery was less than the minimum sum of which the court has jurisdiction. The defendant interposed no claim of set-off, and the affidavit authorized in such case by the statute just quoted was not made. The amount of the plaintiffs’ recovery not having been reduced by a set-off, in the absence of such affidavit the verdict and judgment could not, under the statute, be supported by the complaint in the case Obedience to the .statute requires that the judgment be set aside and the suit dismissed.—Smith, et al. v. Allen, 142 Ala. 148, 37 South. 933. Reversed and rendered.