Kelly v. Johnson
Supreme Court of Alabama
Appeal from the Circuit Court of Coffee. •Tried before the Hon. J. C. Richardson. This was an action brought by the appellee, I. D. Johnson, against the 'appellant, R. A. Kelly. The complaint as originally filed contained two counts.
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Appeal from the Circuit Court of Coffee. •Tried before the Hon. J. C. Richardson. This was an action brought by the appellee, I. D. Johnson, against the 'appellant, R. A. Kelly. The complaint as originally filed contained two counts. The first count claimed the statutory penalty for failure to mark satisfied the mortgage given by plaintiff to defendant, upon the margin of the record thereof after being requested in writing so to do; and second count claims the penalty for failure to enter upon' the record partial payment on a mortgage, given by plaintiff to defendant. Upon a motion by the…
1Opinion of the CourtSharpe, J.
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Under the 'authority of Hamilton v. Griffin, 126 Ala. 600; and Burns v. Beeves, 127 Ala. 127, it must 'be held that the cause of action declared on in the complaint was within the class of demands which by section 8728 of the 'Code is made subject to the defense of set-off. The striking out of the 3d plea was, therefore, error.
The statement offered as testimony of Rushing relates to acknowledging satisfaction of mortgages which had been -paid and not to the failure to enter credits 'of partial payments on the unpaid mortgage of 1896 described in the second count, which after the 'amendment…
2Cases cited2 opinions
- State ex rel. Porter v. CrookSupreme Court of Alabama · 1899
- Burns v. ReevesSupreme Court of Alabama · 1899