The appellant as plaintiff brought a common law action of assumpsit against H. R. Mathews, Jr., for money had and received, to recover the sum of $2,200 alleged to be loot gained in the accomplishment of robbery, the money being recovered from a cache in the edge of the woods, where it was hidden by plaintiff, the alleged robber. Mathews on being served made an affidavit in compliance with Section 1179, Title 7, Code 1940, that Clark who was not a party to the suit, without collusion with him, claimed the money in controversy and deposited the money in court, praying an order that Clark be required on notice to come in and defend. The notice was issued and Clark in response thereto appeared and filed what is termed in the record "an answer", partaking of the nature of a complaint, claiming the money. Thereupon the plaintiff Austin filed, to said last mentioned pleading, a plea of the general issue and a special plea, setting up that he had been tried and acquitted of the robbery, thus misplacing the order and burden of proof. No objection was made to this course of procedure, other than an oral demurrer stated by the attorney for Clark, which the court properly ignored as such pleadings are required to be in writing. Mi-Lady Cleaners v. McDaniel, 235 Ala. 469,179 So. 908, 116 A.L.R. 639.
On the issues thus formed the case proceeded to trial and at the conclusion of the testimony the court, at the request of Clark, gave in his behalf the affirmative charge in writing. Later the jury was recalled or returned into court and the court ex mero motu instructed the jury without hypothesis to return a verdict for Clark. The jury returned a verdict in favor of Clark and the plaintiff has appealed.
I concur in the reversal of the judgment but not in the opinion of the majority. The course which the statute contemplates is that when Clark appeared he should have been substituted for the defendant Mathews, who should have been discharged, and the issues could well have been presented simply by the general issue pleaded by the substituted defendant. It is anomalous for the plaintiff to reverse the order of pleading, misplacing the burden of proof, by appearing as a defendant. Code 1940, Tit. 7, § 1179; Cloud v. Dean,212 Ala. 305, 102 So. 437.
But for the fact that Clark invited the course of procedure adopted by the plaintiff and the court ex mero motu directing a verdict for Clark, the doctrine of error without injury might well be applied. Louisville Nashville R. Co. v. Carter,213 Ala. 393, 104 So. 754; Sovereign Camp, W. O. W., v. Feltman,232 Ala. 570, 169 So. 9; Fraternal Aid Union, Inc., v. Monfee,232 Ala. 606, 168 So. 891. The matter set up in the alleged plea of res adjudicata was clearly immaterial and this plea as well as the plaintiff's plea of the general issue might well have been stricken on motion. Bienville Water Supply Co. v. Mobile, 125 Ala. 178, 27 So. 781; Page v. Skinner, 220 Ala. 302,125 So. 36.
I, therefore, limit my concurrence to the reversal of the judgment.