Woodward Iron Co. v. Keller

ANDERSON, C. J. (1, 2) Section 5355 of the Code of 1907 plainly provides for setting aside the judgment and dismissing the cause where the suit is for a moneyed demand for an amount within the jurisdiction of the court if the judgment rendered is below the jurisdiction of the court, unless the amount was reduced by set-off successfully pleaded or unless the plaintiff makes the prescribed affidavit. This statute applies to all actions ex contractu, but not to torts.—First National Bank of Gadsden v. Pinson, 105 Ala. 588, 17 South. 182, and cases there cited; Smith v. Allen, 142 Ala. 148, 37 South. 933. The present action is ex contractu, and the trial court erred in not setting aside the judgment and dismissing the suit. The case of Sharpe v. Bareny, 114 Ala. 361, 21 South. 490, relied upon by appellee, was a tort action. [433] The judgment of the city court is reversed, and one is here rendered setting aside the judgment and dismissing the cause. Reversed and rendered. Mayfield, Somerville, and Thomas, JJ., concur.