Wilson v. McKleroy

A majority of the court are of the opinion that the demurrer was properly sustained by the court below to count 4; but they think the following defect is *Page 349 fatal to it, instead of the ones given in the original opinion: It fails to aver that said sum of $22,500 bid was the highest and best bona fide bid at the sale for the property. It should aver that there were no intervening bids between $22,500 and the last bid $28,100 that were bona fide, or aver the last bona fide bid before the bid of $28,100. National Bk. v. Sprague,20 N.J. Eq. 159.

The averment in this count 4 that "defendant was defrauded" and not "plaintiff" was a clerical error, unintentional, and self-correcting from the plain purpose of the entire count. Sheffield v. Harris, 183 Ala. 357, 61 So. 88.

Application for rehearing overruled.

ANDERSON, C. J., and McCLELLAN, SAYRE, and SOMERVILLE, JJ., concur.

THOMAS, J., not sitting.