Pollak v. Winter
Supreme Court of Alabama
Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speake. Assumpsit by Sallie Winter as administratrix against Ignatius Poliak. Judgment for plaintiff and defendant appeals. The general issue is an averment that the allegations of the complaint are untrue and puts in issue all the allegations made in the complaint.- — -Sec 5331, Code 1907; L. & N. v. Trammel, 93 Ala. 352; K. C. M. & B. v. Crocker, 95 Ala, 427; Fields v. Brice, 108 Ala. 642; Amer.
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Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speake. Assumpsit by Sallie Winter as administratrix against Ignatius Poliak. Judgment for plaintiff and defendant appeals. The general issue is an averment that the allegations of the complaint are untrue and puts in issue all the allegations made in the complaint.- — -Sec 5331, Code 1907; L. & N. v. Trammel, 93 Ala. 352; K. C. M. & B. v. Crocker, 95 Ala, 427; Fields v. Brice, 108 Ala. 642; Amer. O. E. Co. v. By an, 112 Ala. 346; Alexander r. Woodmen of the World, 49 South. S83. The fact that payment was pleaded along with the…
1Opinion of the CourtAnderson, J.
As a general rule the burden of proving a negative averment is not upon the plaintiff, but this rule does not seem to prevail in actions upon an open account, as -distinguished from a stated or uncontroverted one; and when suit is brought upon an open account the plaintiff does not overcome the burden by merely showing the rendition of service and the value of same, but must offer some proof that it was not paid for when rendered or when due.—Rice v. Schloss, 90 Ala. 416, 7 South. 802; Cook v. Malone, 128 Ala. 664, 29 South. 653; Enis v. Harris, 103 Ala. 330, 15 South. 834; 16 Encyc. of Pl. &…
2Cases cited5 opinions
- Lent v. New York & Massachusetts Railway Co.New York Court of Appeals · 1892
- Great Western Railroad v. BaconIllinois Supreme Court · 1863
- Rice v. Schloss & KahnSupreme Court of Alabama · 1890
- Van Giesen v. . Van GiesenNew York Court of Appeals · 1852
- Enis v. HarrisSupreme Court of Alabama · 1893
3Cited by25 opinions
- Protective Life Ins. Co. v. SwinkSupreme Court of Alabama · 1931
- New York Life Ins. Co. v. BeasonSupreme Court of Alabama · 1934
- Pollak v. WinterSupreme Court of Alabama · 1911
- Jones v. MullinSupreme Court of Alabama · 1949
- Southern Cement Co. v. WalthallSupreme Court of Alabama · 1928
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