Phœnix Insurance v. Moog
Supreme Court of Alabama
Appeal from the Circuit Court of Mobile. Tried before the ITon. Wm. E. Clarke. This action was brought by A. & B. Moog, merchants in Mobile, suing as partners, against the Phosnix Insurance Company; was commenced on the 24th April, 1882, and was founded on a policy of insurance for $12,500, which they had procured from the defendant on a cargo of merchandise shipped by them, per brig Mary Allerton, from Mobile to Galveston.
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Appeal from the Circuit Court of Mobile. Tried before the ITon. Wm. E. Clarke. This action was brought by A. & B. Moog, merchants in Mobile, suing as partners, against the Phosnix Insurance Company; was commenced on the 24th April, 1882, and was founded on a policy of insurance for $12,500, which they had procured from the defendant on a cargo of merchandise shipped by them, per brig Mary Allerton, from Mobile to Galveston. The original'complaint contained two counts, in substance as follows : (1.) “Plaintiffs claim of defendant $12,500, with interest thereon from, to-wit, March 25th, 1882,…
1Opinion of the CourtSomerville, J.
There are some important questions raised by the pleadings in this cause, which we proceed first to consider, before undertaking the examination of those suggested by the bill of exceptions.
1. It is provided by statute in this State, that the party against whom a judgment on demurrer is rendered may plead over as a matter of right, without waiving his privilege of assigning the judgment on demurrer as error in the appellate court, “ unless he has subsequently had the benefit secured by the demurrer upon the trial of other equivalent issues.” Code, 1876, § 3007. Where it appears, therefore,…
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