Appellant sued upon an insurance certificate issued under a group policy. Appellee demurred, and plaintiff amended his complaint. Other demurrers were filed, and on September 7, it was adjudged by the court: “This cause being submitted to the court upon the defendant’s demurrers to the complaint, and after being argued by counsel and understood by the court, it is ordered and adjudged by the court that said demurrers be and the same are hereby sustained.”
The record is silent as to whether the complaint was thereafter amended or another complaint substituted, and hence it would seem no litigable question remained before the court for decision. Western Union Tel. Co. v. Heathcoat, 149 Ala. 623, 629, 43 So. 117; McMahen v. Western Union Tel. Co., 209 Ala. 319, 96 So. 265.
The parties being present in court by attorneys, in the absence of any showing to the contrary, it must be presumed appellant declined to amend. Dickerson v. Schwabacher, 177 Ala. 371, 378, 58 So. 986. Even when leave to amend is given, this court could not know an amendment was made, or, if made, in what it consisted. Keith v. Cliatt, 59 Ala. 408. In Masterson v. Matthews, 60 Ala. 260, no amendment of the complaint was shown in the record, but the record did affirm that following the sustaining of demurrers to the entire complaint, other demurrers were later overruled to certain counts of the complaint, and hence the Supreme Court could, and did, presume an amendment of the complaint. In the instant case the record shows nothing, upon which to predicate such a presumption.
The record, however, shows that four days later, September 11, the demurrers theretofore sustained were withdrawn and appellee permitted to plead in abatement; appellant moved to strike the plea, which, being overruled, he then demurred, and the demurrer being overruled, he then filed thirteen 'replications, and demurrers were sustained to all, except number ten, of the replications; testimony was taken; a jury verdict had in favor of the appellee, followed by judgment sustaining the plea in abatement, and from that judgment this appeal is prosecuted.
When appellant’s complaint was demurred out of court and not amended, this case was at an end, and appellant’s remedy was to suffer a nonsuit and appeal, as authorized by Code, § 6431. It is possible that the parties and the trial court treated the previous rulings on the demurrers as nonexistent, and the case still pending;
Appeal dismissed.
After Remandment.
This court has never expressed, nor entertained, the opinion (attributed to it by the Supreme Court, on certiorari) “that when the demurrer to the complaint was sustained the case was at an end and that nothing remained in the court.” Our former opinion recognized as authoritative a previous pronouncement of the Supreme Court that when, as here, the record showed a judgment sustaining demurrers to a pleading and was silent as to any amendment or offer to amend, it would be presumed a party “declined to amend, and the court properly rendered final judgment.” Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986, 988.
The Supreme Court, instead of presuming, as formerly, a declination • to amend, now declares, “When, without formally setting aside such judgment, it permitted defendant to withdraw the demurrer and to plead in abatement, the effect, concurred in by the parties and the court, was that the judgment on the demurrer was vacated, though not so expressed,” and hence we have now not a presumed declination, but a vacation unexpressed of a judgment.
Treating, as we must, the judgment on demurrer as vacated, and consequently the' c.omplaint as still before the trial court, it consists of three counts, each of which declares upon a certificate under a group policy promising, in certain contingencies, certain payments, and saying, among other things: “Six months after receipt of due proof of such disablement, the insurance company will begin making payments.” Suit was filed within the six months’ period. The first count alleged defendant refused adjustment “denying liability on said certificate and policy,” and, also, “plaintiff avers that defendant has waived and lost the privilege of delaying the beginning of payments for a period of six months from the date of the receipt of proof of disability” through the denial of liability. The second and third counts also relied upon a denial of liability.
Defendant filed a plea in abatement setting out the above-referred to clause of the policy, averring suit was premature, and by amendment added: “It has not denied liability on said certificate and policy sued on before the. said suit.” The plaintiff’s motion to strike was overruled. The allowance of the plea after demurrer-withdrawn and judgment thereon vacated was within the trial court’s ' discretion. Ex parte Haisten, 227 Ala. 183, 149 So. 213. Nor was the plea due to be stricken for any statutory cause. Code 1923, § 9458. The plaintiff then demurred to the plea. Years ago our Supreme Court declared: “There is no necessity to plead in abatement, that the action was commenced before the cause of action arose, such a defence may be made under the general issue. This is the doctrine as laid down in all of the text books, and books of pleading.” Rainey v. Long, 9 Ala. 754. But a more reqent opinion, Dantzler v. Scheuer, 203 Ala. 89, 82 So. 103,- indicates that the prematurity may be pleaded in abatement.
It is apparent that the basic and fundamental question involved in this appeal is, May an insurer, after denying liability, none the less insist upon a delay in being sued? May it deny any obligation to ever pay and at the same time avail itself of a stipulated delay for beginning to pay that which it now denies all obligation to ever pay? The authorities declare that an unequivocal refusal operates as a waiver and enables the insured to sue immediately, notwithstanding the policy may contain a clause similar to that here. 26 Corpus Juris 471, § 667; 33 CorpusJuris 75, § 782; 37 Corpus Juris 597; 2' Couch Insurance, § 454.
The view obtains here that appellant’s-demurrers to the plea should have been sustained. This renders unnecessary any consideration of the replications to the-plea.
Reversed and remanded.