Barnard v. Irwin
Alabama Court of Appeals
Appeal from Birmingham City Court. Heard, before Hon. C. C. Nesmith. Action by S. L. Irwin against W. H. Barnard for damages for an assault and battery. Judgment by default or nil dicit for plaintiff, and defendant appeals. Where a negative plea is on file, a judgment by default or nil dicit cannot be rendered against a defendant, although he fails to appear, and prove or insist upon his plea.
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Appeal from Birmingham City Court. Heard, before Hon. C. C. Nesmith. Action by S. L. Irwin against W. H. Barnard for damages for an assault and battery. Judgment by default or nil dicit for plaintiff, and defendant appeals. Where a negative plea is on file, a judgment by default or nil dicit cannot be rendered against a defendant, although he fails to appear, and prove or insist upon his plea. Such conduct might amount to a waiver of an affirmative plea, but does not amount to a waiver of the general issue. — Thomas v. Brown, 1 Stew. 412; Griggs v. Gil-mer, 54 Ala. 430; Green v. Jones, 102…
1Opinion of the CourtPelham, J.
— Tbe appellant complains that judgment by' default or nil dicit was rendered against him notwithstanding he had filed pleas in the cause in which the judgment was entered. The judgment entry set out in the transcript affirmatively shows that when the case was regularly called for trial the defendant did not insist upon his pleas, or otherwise defend the suit, and that, the defendant being called and making no response, judgment ivas accordingly rendered against him.
The appeal is on the record without a bill of exceptions, and it may be assumed in support of the judgment set out in the…
2Cases cited4 opinions
- Ex parte ParkerSupreme Court of Alabama · 1911
- Hutchison & Wilson v. PowellSupreme Court of Alabama · 1890
- McCollom v. HoganSupreme Court of Alabama · 1840
- Schwarz v. Oppenheimer, Strauss & Co.Supreme Court of Alabama · 1890
3Cited by5 opinions
- Skelton v. WeaverSupreme Court of Alabama · 1957
- Sovereign Camp, W. O. W. v. GayAlabama Court of Appeals · 1924
- Garnett v. ScottSupreme Court of Alabama · 1922
- Wildsmith v. GravesSupreme Court of Alabama · 1923
- Wooten v. Traders' Securities Co.Supreme Court of Alabama · 1927