
    Smith et al. v. Allen.
    
      Action of Assumpsit.
    
    1. Jurisdiction of circuit and city courts; when judgment for iess than limit of jurisdiction, suit should he dismissed. — Where, in an action of assumpsit brought in the circuit or city court to recover $100.00, the verdict and judgment are for $13.50, and the amount claimed was not reduced by reason of a set-off successfully made by the defendant, said judgment, being below the minimum amount of th'e court’s jurisdiction, should, upon motion made by defendant, be set aside and the suit dismissed, (Code, Sec. 3315.)
    Appeal from the City Court of Talladega.
    Tried before the I-Ion. GK K. Miller.
    The facts in this case are sufficiently stated in the opinion.
    Knox, Dixon & Burr, for appellants.
    Section 3335 of the Code of Alabama provides that if a suit be brought for the jurisdictional amount, or above, and a less sum he recovered, unless the amount is reduced below that of which the Court has jurisdiction by a set-off successfully made by the defendant, the judgment must be set aside and the suit dismissed, unless the defendant, or someone for him, make affidavit, which must be filed in the cause, that the amount sued for is actually due, and that a recovery Tor the true amount was prevented by failure of prooí, the interposition of the statute of limitations, or by some other sufficient cause, to be judged of by the Court; and in that event the defendant must have judgment for the reduced sum. In this case, as appears from the bill of exceptions and the record, there was no such affidavit filed and therefore the Court could do nothing but set aside the judgment and dismiss the suit in compliance with the mandatory terms of the statute.— Mills v. Long, 58 Ala. 438; First National Bank of Gads
      
      den v. Pinson, 105 Ala. 548; McClure v. Lay, 30 Ala. 208.
    No counsel marked as appearing for appellee.
   McCLELLAN, C. J.

This is an action of assumpsit, instituted by Mrs Allen against M. L. Smith, et al.,'in the city court of Talladega for one hundred dollars. There was verdict and judgment for the plaintiff in the sum of thirteen and 50-100 dollars. Motion was made by defendants to set aside this judgment and dismiss the suit on the ground that the recovery was for a less amount than that of which the court had jurisdiction, under the provisions of section 3315 of the Code. The motion should have been granted; The action was “on a moneyed demand.” The recovery wa.s below the minimum amount- of the court’s jurisdiction. The amount claimed ivas not reduced “below that of which the court had jurisdiction by a set-off successfully made by the defendants.” Every constituent of the statutory predicate for the motion, therefore, existed. Thé affidavit provided for by the statute to avail the setting aside of the judgment and dismissal of the suit was not made. The court erred in overruling the motion. Its judgment thereon must be reversed and a judgment will he here entered granting said motion, setting aside the judgment for plaintiff and dismissing the suit out of the city court.

Reversed and rendered.

Tyson, Simpson and Anderson, J. J., concurring.  