Manning v. Giles

Manning v. Giles. Assumpsit. (Decided December 7, 1916. 73 South. 428.) Courts; Jurisdiction; Statute, — Where there was judgment for plaintiff for less than $50 in the circuit court, and there was no question of set-off, and plaintiff did not file the affidavit as required by § 5355, Code 1907, the motion of defendant to set aside the judgment and dismiss the suit should have been granted. Appeal from Chilton Circuit Court. 'Heard before Hon. W. W. Pearson. Assumpsit by Alex Giles against Malcolm Manning. Judgment for plaintiff and defendant moved to set aside the judgment and dismiss the suit, the plaintiff having failed to file the requisite affidavit. The court denied the motion and defendant appeals. Reversed and rendered. Transferred from Court of Appeals under Acts 1911, p. 450. Smith & Gerald, for appellant. Curry & Walker, for ap-pellee. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. Plaintiff sued in the circuit court on the common counts for $65, and the case was tried on the general issue by the court without a jury. There was judgment for plaintiff for $18.50, whereupon defendant moved that the judgment be set aside and the suit dismissed, on the ground that the sum recovered was not within the jurisdiction of the court. There being no question of set-off, and plaintiff not having filed any affidavit that a sum in excess of $50 was actually due him, as required by the statute (Code, § 5355), the motion should have been granted.—Camp v. Marion County, 91 Ala. 240, 8 South. 786; Smith v. Allen, 142 Ala. 148, 37 South. 933. Let the judgment be reversed, and one here rendered setting aside the judgment and dismissing the suit. Reversed and rendered. McClellan, Mayfield, and Thomas, JJ., concur.