Locke v. Locke

The present suit was tried on the pleas of non assumpsit and set-off. The complaint sets forth, as cause of action, two notes payable to plaintiff as administrator of another. The suit is by plaintiff in his representative capacity. The plea of set-off is pleaded by its name alone, and does not show in what form or right the cross-demand; *475exists. Nor does it show in whose favor it is asserted; whether by all, or only one, or a part of the defendants. There was no demurrer to the plea, and no exceptions reserved on the trial.

1. If, as the verdict tends to show, the set-off was due to only one of the defendants, this would constitute a good defense to plaintiff’s action, but would not authorize a recovery for the excess, for the reason that such recovery would require a change, to that extent, of the parties to the judgment. In fact, it would, in effect, require two judgments; one in favor' of one defendant for the certified balance, and the other in favor of all the defendants for the costs of the suit. This ■ can not be done in legal proceedings. But it furnishes no reason why such demand should not be a complete answer' to the plaintiff’s right of recovery.—Carson v. Barnes, 1 Ala. 93; Jones v. Jones, 12 Ala. 244; Huddleston v. Askee, at present term; Mitchell v. Burt, 9 Ala. 226; Pritcher v. Patrick, Minor, 321.

2. Whether, if the set-off claimed in this case was a debt due from plaintiff’s intestate to defendant, or whether if it was a debt due from the administrator individually, it could be pleaded as a set-off in this action, are questions which the-present record no where raises. We are not informed what was the evidence, or what the rulings in the court below. See Harkin v. Levi, 6 Ala. 399; Rapier v. Holland, Minor, 176; Gayle v. Randle, 1 Stew. 529; Crabtree v. Cliatt, 22 Ala. 181; White v. Ward, 22 Ala. 442. But these questions not being-presented in the primary court, can not be considered here. 1 Brick. Dig. 776, § 31.

3. Even if the issue formed in this cause was immaterial,, if there was a trial, and verdict and judgment rendered upon it without objection to it properly reserved, this court, by any rules known to us, is powerless to grant relief.—Mudge v. Treat, page 1, present volume.

The judgment rendered in the court below, against the-plaintiff, for the certified balance due from him, is an error, which works a reversal of the judgment to that extent. It extends no further. The judgment should have done no more than to discharge the defendants with their costs. A judgment is here rendered, reversing and vacating that part of the judgment, and permitting the residue to stand on a general verdict and judgment for defendants. Let appellees pay the costs of this appeal.—See Jackson v. Shipman, 28 Ala. 488.