W. L. Austin instituted suit by summons and complaint in the Circuit Court of Russell County, Alabama, against H. R. Mathews, sheriff of Russell County, to recover the sum of $2,200 as for money had and received.
Under and by virtue of the provisions of section 1179, Title 7, Code of 1940, Mathews made affidavit that one W. H. Clark, not a party to the suit, without collusion with him, claimed the money in controversy, and deposited the money in court, and prayed an order that Clark be required, on notice, to come in and defend.
Clark appeared and interposed a claim to the money. In substance, he claimed that the money belonged to him; that Austin and one A. V. Dunn came to his place of business in Russell County, Alabama, and "robbed him of said sum of money"; that said sum of money was taken from W. L. Austin by officers of the law and held by them as evidence in a pending criminal charge against W. L. Austin and A. V. Dunn, wherein Austin and Dunn were charged with robbery, and that later said money was turned over to H. R. Mathews.
Austin interposed demurrers to the claim of Clark, which were overruled. Austin then filed a plea of the general issue and a special plea numbered 2. In substance plea 2 alleged that Austin has theretofore been tried by a jury in Russell County, Alabama, on the charge of robbery, mentioned in Clark's claim, and by the jury acquitted, and that by reason thereof he should have judgment awarding the money in controversy to him.
Plea 2 was not tested by demurrer, but instead issue was joined thereon. The cause was tried by a jury. Plea 2 was clearly sustained by the testimony. In fact no evidence to support a contrary inference was offered. The trial court, upon written request therefor, gave the general charge for claimant Clark. The jury returned a verdict for Clark, and judgment was rendered thereon. Austin's motion for a new trial was overruled by the trial court, and he appealed.
Austin's special plea 2 is but an attempt to set up, as an answer to Clark's claim, the fact of his acquittal on a trial for the criminal charge of robbing Clark of the money involved in this suit. The fact of acquittal of the criminal charge was not material in this cause, and the plea was insufficient. Sovereign Camp, W. O. W., v. Gunn, 224 Ala. 444, 140 So. 410. But, as stated above, Clark joined issue on plea 2 without testing same by demurrer.
It has been often stated in the opinions of this Court that parties may frame their own issues, and thereby immaterial matters made material for that trial. Fraternal Aid Union v. Monfee, 230 Ala. 202, 160, So. 529. And if the cause is tried upon an insufficient or immaterial plea, without objection being first taken by demurrer, the judgment of the court must be pronounced in accordance with the result of the issues. The trial court cannot instruct the jury to find against the evidence supporting such a plea. Watson v. Brazeal, 7 Ala. 451; Masterson v. Gibson, *Page 562 56 Ala. 56; Mudge v. Treat, 57 Ala. 1; Glass v. Meyer, Son Co., 124 Ala. 332, 26 So. 890; Clinton Mining Co. v. Bradford,192 Ala. 576, 69 So. 4; Alabama Fuel Iron Co. v. Denson,208 Ala. 337, 94 So. 311; Pridgen v. Shadgett, 244 Ala. 167, 169,12 So. 2d 395.
The trial court was in error in giving at claimant Clark's request the general charge.
The cause is reversed and remanded.
Reversed and remanded.
All the Justices concur.