Powell v. Asten
Supreme Court of Alabama
Appeal from the Circuit Court of Payette. Tried before the Hon. Wm. S. Mudd. This action was brought by Robert Y. Asten, against Elizabeth. R. Powell, and was founded on the defendant’s promissory note for $425, dated the 10th September, 1857, and payable on the 25th December next after date.
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Appeal from the Circuit Court of Payette. Tried before the Hon. Wm. S. Mudd. This action was brought by Robert Y. Asten, against Elizabeth. R. Powell, and was founded on the defendant’s promissory note for $425, dated the 10th September, 1857, and payable on the 25th December next after date. The defendant pleaded, in short by consent, non-assumpsit, want of consideration, and failure of consideration; and a special plea, which averred that the note was given for the amount found due from the defendant on an award, and stated the facts connected with the arbitration and award. The court below…
1Opinion of the CourtR. W. Walker, J.
If it be conceded that the special plea, the demurrer to which was sustained, contained substantial matter of defense to the action, it is clear that the facts alleged might have been given in evidence under the other-pleas filed by the defendant. There was, therefore, no error of which the appellant can complain, in sustaining the demurrer. — Rodgers’ Adm’r v. Brazeale, 34 Ala. 512, and cases there cited.
2. It is not shown that the defendant excepted to the action of the court, in refusing leave to plead over. He cannot, therefore, assign it as ei'ror in this court.
2Cases cited1 opinion
- Rodgers' Adm'r v. BrazealeSupreme Court of Alabama · 1859
3Cited by4 opinions
- Bright v. StateSupreme Court of Alabama · 1884
- Tuskaloosa Wharf Co. v. Mayor of TuskaloosaSupreme Court of Alabama · 1863
- Hays v. MyrickSupreme Court of Alabama · 1872
- Louisville & Nashville Railroad v. HallSupreme Court of Alabama · 1901