
    DOUGLAS et al. vs. BEASLEY.
    [action on promissory note, by assignee against maker.]
    1. Sufficiency of complaint — In an action on a promissory note, by an assignee against tbe maker, tbe complaint must aver the assignment, or contain some other averment showing the plaintiff’s ownership of the note; and the want of such an averment is a substantial defect, (Code, § 2405,) for which a judgment by default will be reversed on error. (Byrd, J., dissenting.)
    
    Appeal from the Circuit Court of Lowndes.
    Tried before the Hon. E. Bugbee.
    This action was brought by Joseph Beasley, against Charles Douglas and Elisha A. Hearne, and was commenced on the 15th December, 1868. The complaint was in the, following words : “ The plaintiff claims of the defendants twenty-seven hundred and fifty dollars, due by promissory note, made by them and one Mallett Douglas, on the 5th September, 1857, payable to Y. W. Graves, at the office of Bugeley, Blah' & Co., New Orleans, La.,' on the 1st day of January, 1860, bearing interest from the date thereof; together with the interest thereon.” Judgment by default was rendered against both of the defendants, at the fall term, 1865; and that judgment is now assigned as error.
    Geo. W. Stone, and Chilton & Thorington, for appellant.
    Clements & Williamson, contra.
    
   JUDGE, J.

In Browder v. Gaston & Wellborn, (30 Ala. 677,) this court held, that in an action on a promissory note, by the transferree against the maker, the complaint must aver the assignment, or contain some other allegation to show the plaintiff’s ownership; that if this is omitted, the complaint is substantially defective; and that the defect is available on error, after judgment by default, notwithstanding section 2405 of the Code provides that “ no judgment can. be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.”

The correctness of this decision has been assailed in the argument of this cause, and we are asked to disregard it as authority. There are other decisions of this court, bearing upon the question; and without entering into a particular examination of them, I deem it only necessary to state, that I do not conceive any one of them to be materially in conflict with Browder v. Gaston & Wellborn. See Blount v. McNeill, 29 Ala. 473; Stewart v. Goode & Ulrick, 29 Ala. 476; Mahoney v. O'Leary, 34 Ala. 97.

If the main question decided in Browder v. Gaston & Wellborn was res integra, I might come to a different conclusion from the one attained therein by the court. But nine years have elapsed since that decision was made, and it was pronounced by an undivided court. It simply declares a rule of practice, not affecting the material rights of any party; it may be easily conformed to, and, in my opinion, should not now be disturbed. In the language of Chancellor Kent: “ If a decision has been made upon solemn argument, and mature deliberation, the presumption is in favor of its correctness ; and the community have a right to regard it as a just declaration or correct exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded, and implicitly followed. * * The language of Sir William Jones is exceedingly forcible on this point. ‘No man,’ says he, ‘who is not a lawyer, would ever know how to act; and no man who is a lawyer, would, in many instances, know what to advise, unless courts were bound by authority as firmly as the pagan deities were supposed to be bound by the decrees of fate.’”—1 Kent’s Com. 476.

I would not be understood as favoring the doctrine of stare decisis, to the extent indicated by Sir William Jones, in the quotation made from him by Chancellor Kent. The, quotation, however, serves to illustrate the great value placed upon the doctrine by distinguished jurists.

On the authority of the case of Browder v. Gaston & Wellborn, supra, the judgment of the circuit court is reversed, and the cause remanded.

A. J. WALKEB, C. J.

The suit is here by another person than the payee of the note which is the subject of the suit, and there is no averment of title in the plaintiff. This complaint does not, according to the decision in the case of Browder v. Gaston & Wellborn, (30 Ala. 677,) contain a substantial cause of action; and the judgment of the court below must be reversed, if that decision is not overruled. In my judgment, this case ought to have been reversed, upon the doctrine of stare decisis, without discussion. The correctness of the decision in Browder v. Gaston & Wellborn, supra, is assailed, and it is argued that it should be overruled. I think it contains a sound and correct exposition of the law, and it is meet that I should state the reasons for my approval of it.

The complaint in that case averred, that the note in suit was made payable to a certain person; and that person was not the complainant. It was not averred that the title to the note, or the right of action upon'it, had ever passed out of the payee; and nothing was shown from which such fact could be inferred. The court decided, (as I think it could not avoid deciding,) that the complaint did not show a substantial cause of action in the plaintiff, but, on the contrary, showed a cause of action remaining in the payee. It is contended that the assertion in the complaint that the plaintiff claimed the sum due on the note and interest, involves, or is equivalent to, an averment of property in the plaintiff; and that therefore the complaint really contained an allegation that the plaintiff was the owner of the note. The obvious import of the word “claims,” in the connection in which it occurs, is that the plaintiff seeks to recover, or demands; and such, I think, is the general acceptation of the word. Besides, it is expressly decided in Crimm v. Crawford, (29 Ala. 623,) that the phrase “ the plaintiff claims,” in a complaint for the recovery of chattels in specie, does not imply an assertion of title, but that all averment of title in that action was dispensed with.—See, also, George v. English, 30 Ala. 582. The word claims, in the prescribed forms, has therefore a construction established by a decision of this court, and that decision would be overruled by holding that it includes an averment of title.

Section 2228 teaches that complaints should conform substantially to the schedule of prescribed forms. An examination of those forms shows that, in every case where a note is sued upon by any other person than the payee, as well-as where an account is sued upon by a transferree, the title or property of the plaintiff is carefully stated. The decision in Browder v. Gaston & Wellborn, in holding an averment of property in the plaintiff necessary, is in strict conformity to the forms prescribed by the Code.

There is not the slightest conflict between the decision in Browder v. Gaston & Wellborn, and the decisions in Stewart v. Goode & Ulrich, (29 Ala. 476,) Blount v. McNeill, (ib. 473,) and Mahoney v. O’Leary, (34 Ala. 97.) Thp decisions are all made in reference to complaints which were in themselves unobjectionable. A defect in the cause of action could only be discovered by looking to the date of the commencement of suit. The complaints themselves contained a substantial cause of action. Section 2405 of the Code certainly designs to cure errors, when the complaint in itself contains a substantial cause of action; and as the complaints in those cases did contain substantial causes of action, error which could have been discovered by looking to the summons was cured after judgment by default. The complaint in Browder v. Gaston & Wellborn did not contain a cause of action, and the error could not be cured by section 2405 of the Code. There is no conflict. All the cases are harmonious, and all of them should, in my opinion, stand.

If farther reasons in support of my position are desired, I refer to the brief of the Hon. Geo. W. Stone, of counsel for the appellant, which contains an extended, and, in my judgment, unanswerable argument, in favor of the correctness of the decision in the case of Browder v. Gaston & Wellborn.

BYED, J.

The only question raised on the record is, whether the court below erred in rendering judgment final by default on the complaint. Every reasonable intendment should be made in favor of tbe judgment.—Letondal v. Huguenin, 26 Ala. 552. But if, after invoking tbe aid of tbis long established and conservative rule, it is clear that tbe judgment is erroneous, it should be so pronounced. Tbe solution of tbe question involves tbe interpretation and construction of tbe following sections of tbe Code: 2161, 2165, 2227, 2228, 2234, 2129, 2402, and 2405 ; and also the correctness and consistency of tbe following adjudications of tbis court: Blount v. McNeill, 29 Ala. 473; Stewart v. Goode & Ulrick, ib. 476; Browder v. Gaston & Wellborn, 30 Ala. 678; Mahoney v. O’Leary, 34 Ala. 98; and Crimm’s Adm’r v. Crawford, 29 Ala. 623.

By section 2234 of tbe Code, tbe complaint must in all cases accompany the summons ; and by section 2161, tbe summons must be issued by tbe clerk, and be accompanied by tbe complaint, signed by tbe plaintiff, or bis attorney, setting forth “tbe cause of action.” Tbe effect of these two sections of tbe Code is, to make tbe summons and complaint so far one instrument, that they must be construed together; and tbis view is further sustained by section 2165, which requires tbe summons to be executed by tbe officer, leaving “ a copy of tbe summons and complaint ” with the defendant, and wdiich fact be must return with tbe process. Tbe issuance of tbe summons is, therefore, tbe date of tbe filing of tbe complaint, and must be so taken, where nothing appears in tbe record to negative tbis presumption. Prior to tbe Code, tbe declaration was filed at tbe return term of tbe capias ad respondendum. Tbe Code restored tbe common-law practice to tbe extent above indicated. In tbis case, tbe record shows that tbe provisions of sections 2161, 2165, and 2234, were complied with.

Sections 2227 and 2228 furnish rules for pleadings, in cases where no form is provided in tbe appendix to part 3d of tbe Code, and make any pleading which substantially conforms to such forms, sufficient. What is meant by tbe word “ substantially,” will hereafter appear. Now, if tbe 4th form in tbe Code, which is as follows—

“A. 33., plaintiff, vs. C. D., defendant. \ The plaintiff claims of the defend-V ant- dollars, due by promissory J note made by him on the — day of ■-, and payable the — day of-, with interest.
“ E. E., attorney for plaintiff.”

—sets forth a substantial cause of action in favor of the plaintiff, and against the defendant, it seems to me very clear that the complaint in this case, as shown in the record, “substantially conforms” to that, which is the only one given in the Code against the maker of a promissory note. If the word “ claims,” used in the forms, means anything, it is certainly that the right of action is in the plaintiff; and so it must signify in the 4th, 5th, 9th, and 14th forms given in the Code, (pp. 552-3,) and in all.

Section 2129 supports this view. It provides that a suit on such a note as is described in the complaint, “ must be prosecuted in the name of the person really interested,” and not of the person who has the legal title. — Crook v. Douglass, 35 Ala. 693. Certainly, the word “ claims ” has, at least, the effect of asserting that the plaintiff is the person really interested in the money due on the note; though, in the 9th form, it performs the higher office of an averment of title in the plaintiff to the chattels sued for.

What is the ordinary and legal definition of the word “claim?” Among the definitions given by Webster, are, “ to ask or seek; to obtain by virtue of authority, right, or supposed right; to demand as due ; to be entitled to anything as a matter of right; a right to claim or demand; a title to any debt, or privilege, or other thing, in possession of another.” Bouvier (Law Dic., vol. 1, p. 233) defines it as follows: “A challenge of the ownership of a thing which a man has not in possession, and is wrongfully withheld by another.” — : Plowd. 359; 1 Dall. 444; 12 S. & R. 179. Burrill gives the following definition: “A challenge or demand by any man of the property or ownership of a thing, or some interest in it, which he has not in possession, but which is toithholden from him wrongfully”; and as “ a demand of some matter as of right; to do, or to forbear to do, some act or thing as a matter of duty.”- — 16 Pet. R. 539-615; 4 Sandf. Ch. R. 38; 2 Comstock, 245-254. Mr. Jacob defines it as “ a challenge of interest in anything that is in the possession of another.”

These definitions clearly show in what sense the word “ claim ” was used by the learned codifiers, in tlm forms referred to; that is, that thereby the plaintiff asserts in himself the ownership of, or the right to, the money due on the promissory note, which money he has not in possession, and which is wrongfully withheld by the defendant; or, when the suit is “for the recovery of chattels in specie”, that the ownership of, or right to them, is in him, but the possession is wrongfully withheld by the defendant. The legal title to a promissory note may be in one person, but another may sue to recover the money due on it, if he is the person “ really interested ” in it, and he alone “ must ” sue. — Code, § 2129. As to the effect of the word claim, see the last paragraph of the opinion in the case of Roberts v. Fleming, 31 Ala. 683.

Section 2405 of the Code is as follows: “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.” The meaning of the words “matter ”, “ substantial ”, and “cause of action”, must be ascertained, to understand this section, as also sections 2161, 2227,2228, and 2402. Bouvier defines the word “matter ” thus: “Some substantial or essential thing, opposed to form.” The word “substance”, from which the words “substantial”, and “ substantially ”, are derived, he defines as “ that which is essential; it is used in opposition to form.”' He defines the phrase “ cause of action” thus: “A right to bring an action, which implies that there is some person in existence who can assert, and also a person who can lawfully be sued.” Now, let us construe all the sections of the Code referred to together, keeping in view the above definitions of the terms used therein, and deduce the legal conclusion that results therefrom. It seems clearly to be, that “ the party really interested ” in the money due on a promissory note must prosecute the suit for its recovery; that the word “ claims ”, in the' complaint, is equivalent to an averment that the plaintiff is the party really interested in the recovery of the money, though the complaint shows that the note is payable to another; that, at least, the promissory note is “ a substantial cause of action ” against the defendant, and even if the right of the plaintiff to the money due on it is defectively averred, yet, there being a judgment by default, and the defect being “ matter ” not previously objected to, (taking the meaning of the word “ matter ” as above defined by Bouvier,) the judgment should not be set aside or reversed by this court; for, there is, as before stated, at least, “ a substantial cause of action ” as against the defendant, to support the judgment.

If section 2405 reaches only formal defects, what was the use of section 2402 ? If it was intended to cure matters of substance, what matters of that description are cured by it after judgment ? In my judgment, it was intended to heal and cure all “ matter ” (in its legal sense) not previously objected to, where there was one “ substantial cause of action ” alleged. But the case is not 'reduced to this dilemma. The word “ claims ”, in this complaint, actually fulfills the other requirement of the law, and asserts the right of the plaintiff to the money due, on the note, and thereby shows a perfect right of, action in tjie plaintiff, against the defendant.

There is no case among the decisions of this court, in which the legal import of the word “ claims ”, as used in the forms, has been considered and defined; the question having uniformly been the sufficiency of the forms prescribed by the Code as legal enactments, and not what their terms imported. The codifiers were eminent and “ learned in the law ”, and they certainly knew what the word “claims ” signified in law, and were not oblivious of the fundamental rules of the common law as to pleadings ; and therefore they used that word in the 4th, 5th, 9 th, 14th, and other forms of the Code, in its legal sense, and knew that it performed the double office, which no other word did, of an averment of the beneficial interest in, or title to, the subject-matter of the suit, in the plaintiff, and also of a breach of a contract or duty by the defendant, or that the thing sued for “ was wrongfully withheld by the defendant”, as above defined.

In the case of Crimm v. Grawford, (29 Ala. 623,) the court say: “ The complaint in this case is in pursuance to the form prescribed by the Code. These forms have the force of law.” This decided the sufficiency of the complaint in that case; yet the court go on, without considering or defining the meaning of the word “claims”, and say that “ by the Code, all averments as to title are dispensed with.” Suppose this mere obiter dictum to be correct; still such averments are “ dispensed with ”, if at all, “ by the Code ”, and as much in this case as any other, under the influence of section 2228. Then, whether this view or mine is correct, the complaint in this case is good, at least, after judgment by default, under section 2405. But, to hold that the Code dispenses with “ all averments as to title ”, would place the codifiers, as lawyers and legislators, in a very equivocal, if not absurd and ridiculous attitude; adopting legal forms without meaning or substance, without an averment of title in the plaintiff, or breach of duty by the defendant. Argumentum ah impossibili valet in lege.

Now, let us turn our attention to the decisions of this court. In the case of Blount v. McNeill, (supra,) the suit was commenced on the 5th February, 1855, founded on three promissory notes, one of which was not, due until the 1st March afterwards; and a judgment was rendered on the 14th April, 1855, for the full amount thereof. This court said, that a defense might have been made in the court below, to a part of the matter embraced in the declaration, but that the declaration contained “agood cause of action”; and, speaking of the defense to a recovery on the note not due when the suit was commenced, the court say: “ Such a defense is not available in this court, when no objection was in any way made in the court below. Code, § 2405.”

In the case of Stewart v. Goode & Ulrick, (supra,) among the assignments of error were these: “ In allowing the assignee of the note to sue in his own name, on an assignment made after the action was brought.” “6th, The complaint is insufficient, because it does not allege that the note is ‘ still unpaid, ’ as required by the forms of the Code.” “7th, The complaint does not show that the plaintiff had any cause of action when the suit was commenced, while the summons stands as it was when issued, and the plaintiffs therein not changed.” And the court, in passing on these, and other similar questions, used this language: “ The complaint shows a substantial cause of action, and although the defects attributed to it by the appellant might have been available on demurrer, advantage cannot be taken of them in this court, when no objection was in any way taken in the court below.” Now, if “the defects attributed ” could not avail on appeal, where there is a substantial cause of action, what does the case decide, if it is not that the note sued on was a substantial cause of action, although the right of action was not averred to be in the plaintiff when the suit was brought, and in fact was not, and that the judgment by default was irreversible?

In the case of Mahoney v. O’Leary, (supra,) the summons having been issued on the day the note became due* the court held that the suit was “prematurely brought;” and cited 2 Porter, 286, and 5 ib. 73. In a very terse and able opinion delivered by Stone, J., speaking of the case of Randolph v. Cook, (2 Porter, 286,) the court say: “ This court, in this case, consulted the writ, and, because its date showed the suit to have been prematurely brought, reversed the case. That case was decided under the statute of 1824, (Clay’s Dig. 322, § 53,) which enacts as follows: ‘ No cause shall be reversed, arrested, or otherwise set aside, after verdict or judgment, for any matter on the face of the pleadings not previously objected to; provided, the declaration contains a substantial cause of action, and a material issue be tried thereon.’ ” As the court, under the practice existing at the time of the decision of the case of Randolph v. Cook, (supra,) did look back to the writ, to see if the suit was prematurely brought; a fortiori, it was its duty to look at the date and issue of the summons in the case of Mahoney v. O’Leary, under the practice then exist-, ing, to see if the suit had been prematurely brought.

The court, in the latter case, further say, speaking of the act of 1824: “ To bring a case within the healing influence of this statute, the declaration must contain a substantial cause of action, and a material issue must be tried thereon;” and it was held, that the latter element was wanting, and therefore the act of 1824 did not apply; clearly implying that, if “a material issue had been tried thereon,” the declaration and judgment would have been good, though the plaintiff had no right of action against the defendant at the time the suit was brought. The court further say: “ It is true the summons in this record bears date March 1; but, under the section of the Code above copied,” (2405,) “we have no authority, the complaint being good, to arrest, annul, or set aside the judgment, for any matter not previously objected to.” This applies to any matter on the face of the complaint, as well as matter not so appearing. Now, it is submitted that the court should have looked at the summons, as the court in the case Randolph v. Cook looked at the writ, to see whether the suit was prematurely brought, and for a much stronger reason; and that is, the declaration, under the former practice, was not filed until the return term of the writ, and when the suit of Mahoney v. O’Leary was commenced, the Code was in force, and required the complaint to accompany the summons, and both to be served by leaving a copy with defendant, who, of course, would see that the plaintiff had no cause of action against him, and might very naturally conclude that it was unnecessary to defend sucha suit in & court of justice. A strong case.

The cases of Blount v. McNeill, and Stewart v. Goode & Ulrick, (supra,) are cited as authority in Mahoney v. O’Leary, and both of them follow Randolph v. Cook, in looking to the writ, or summons, to see if the suit was prematurely brought; and this point should therefore be considered as settled.

The case of Browder v. Gaston & Wellborn, (supra,) was decided prior to Mahoney v. O’Leary, and seems to me to be clearly in conflict with that case, and with the cases of Blount v. McNeill, Stewart v. Goode & Ulrick, and Crimm’s Adm’r v. Crawford, (supra.) It is true, that the facts in each case are different; but in principle the case of Browder v. Gaston is in conflict with »the other cases. The case of Browder v. Gaston, like that of Crimm v. Crawford, does not consider and define the meaning and effect of the word “claims.” In the cases of Randolph v. Cook, Stewart v. Goode, and Mahoney v. O’Leary, the plaintiff had no right of action in himself at the time the suit was commenced, and at that time had no cause of action against the defendant; and in Browder v. Gaston, there was a substantial cause of action against the defendant; and I hold that the word “claims” asserts a right of action in the plaintiff. But suppose it does not; still, I hold that there was a substantial cause of action contained in the complaint against the defendant, and that therefore the judgment should not have been set aside, or reversed, under the healing influence of section 2405. If otherwise, what does that section mean, and what field of operation has it, when it applies to “matter” not appearing on the face of the complaint, which should so appear, when there is a substantial cause of action contained in it ?

To illustrate : If the words in the second form, on page 551 of the Code, “endorsed to the plaintiff,” were omitted, still, after judgment by default on such a complaint, the defect would be healed and cured by section 2405. If not, then I am incapable of comprehending what that section effects, when applied to “matter” not appearing on the complaint, which should so appear to give a perfect right of action, in a case where one substantial cause of action, and the most material one, is contained in the complaint, and the “matter” omitted has not been previously objected to. The case of Mahoney v. O’Leary, in which there was no existing cause of action in the plaintiff, or against the defendant, at the commencement of the suit, is more obnoxious to- principle and a wholesome sense of justice, than the case of Browder v. Gaston, where there was a good cause of action set out in the complaint against the defendant ; and, if my view of the effect of the word “claims” is correct, the complaint is sufficient, and the judgment valid. ■

These eases being in conflict on principle, an election is left to me to follow the case of Browder v. Gaston, or the other cases cited; and, as sound reason, and a proper construction of the Code, fully sustain the sufficiency of the complaint in this case, after judgment without objection, I follow the latter; and am not reduced to the dilemma of overruling a case which has been decided for any length of time, without having a later case, which on principle fully sustains my views. But, if I were, then I might be reduced to the extremity of announcing what amount of veneration I have for decisions in which sound reason and principle are ignored or violated. In differing from the learned court in one case, I am sustained by other opinions of this court, which were concurred in unanimously by the court. The judgment by default should be affirmed. This conclusion, resting on authority, reason, and principle, stands on a firm and fixed foundation.

But, on the other hand, if the following sentences, in the opinion of the court delivered by the Chief-Justice, in the case of Crimm's Adm’r v. Crawford, (29 Ala. 623,) to-wit: “Now, it is evident from this form that, under the new system of pleading inaugurated by the Code, all averments as to the title are dispensed with, and, indeed, everything hire averment is dispensed with. The only requisite to a good complaint is, to state that the plaintiff claims, and what he claims,” — are to be taken as law, or as res adjudicaba, then the foundation of my conclusiqn is equally, if not more firm and fixed. The broad declaration is made, that by the “new system of pleading inaugurated by the Code all averments as to the title are dispensed with,” and that the “only requisite to a good complaint is to state that the plaintiff claims, and what he claims.” How this can be reconciled with the doctrine or decision in the case of Browder v. Gaston, (30 Ala. 678,) is beyond my comprehension, at least upon reason and principle.  