Smith v. Awbrey
Supreme Court of Alabama
Error to the Circuit Court of Perry. Tried before the Hon. John D. Phelan. This was an action of assumpsit, instituted by Awbrey against the plaintiffs in error, on a promissory note alleged to have been lost, affidavit being made of the loss under the statute. The declaration contained a special count on the note and the common counts.
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Error to the Circuit Court of Perry. Tried before the Hon. John D. Phelan. This was an action of assumpsit, instituted by Awbrey against the plaintiffs in error, on a promissory note alleged to have been lost, affidavit being made of the loss under the statute. The declaration contained a special count on the note and the common counts. The defendants demurred to the special count, and their demurrer being overruled, pleaded the general issue, on which a verdict was rendered against them. It was shown in evidence, that the plaintiff had given up the note to Smith, because it was written with…
1Opinion of the CourtParsons, J.
We do not find it necessary to determine whether the first count in the declaration was good or not. There was a demurrer to it, which was overruled; and if the count was bad there was error, certainly, in overruling the demurrer. But if this were a harmless error, an error which really injured no one, it is according to the established course of this court not to *66reverse for it. In this view of the ease, the only difficulty is in reconciling this with the case of Porter v. Nash, 1 Ala. 452. In that case there was a special count on a lost promissory note, and the common money counts. The…
2Cases cited2 opinions
- Porter v. NashSupreme Court of Alabama · 1840
- Bell v. MooreSupreme Court of Alabama · 1846
3Cited by2 opinions
- Huffman-East Development Corp. v. Summers Electric Supply Co.Supreme Court of Alabama · 1972
- Hill's Administrator v. NicholsSupreme Court of Alabama · 1874