Clancy v. Taylor

68 So. 522, 12 Ala. App. 557, 1915 Ala. App. LEXIS 200

• Court: Alabama Court of Appeals
• Decided: April 8, 1915
• Status: Published

Opinion

BROWN, J.

The appellees before submission of this case entered a motion to strike the bill of exceptions because it was prepared in violation of rule 32, Circuit and Inferior Court Practice (Code 1907, vol. 2, p. 1526), and the case was submitted on this motion and on the merits.

The paper signed by the trial judge and set out in the record as a bill of exceptions is nothing but a full stenographic report of the trial, embodying the questions of counsel and the answers of the witnesses, as well as the remarks made by the court and counsel as the tidal proceeded. While the only question sought to be reviewed on the bill of exceptions is the action of the court in rendering judgment for the defendant Taylor, the bill does not show that an exception was reserved to this action of the court. Under the uniform rulings on this question, the motion of appellees to strike from the record the stenographic report of the trial must be granted.—Southern Ry. Co. v. Jackson, 133 Ala. 384, 31 South. 988; Gassenheimer Paper Co. v. Marietta Paper Co., 127 Ala. 183, 28 South. 564; Hester v. Cantrell, 169 Ala. 490, 53 South. 1009; Lucas v. Mays, 2 Ala. App. 497, 56 South. 593; Irby v. Kaigler, 6 Ala. App. 91, 60 South. 418; Owens v. State, 11 Ala. App. 309, 66 South. 852.

The record shows no judgment on the demurrers of the plaintiff to the defendants’ second amended plea, and the assignments of error predicated on the action of the court in overruling these demurrers cannot be considered.' — -2 Mayf. Dig. 183, § 42.

The plaintiff’s replications 2, 3, and 4, to plea 2 as amended, merely traverse some of the averments of the plea, and the facts therein averred were admissible under the general traverse afforded by the general replication, and no prejudicial error is shown by the rulings of the trial court on the demurrers to these replications.—Black, et al. v. Smith, et al., 179 Ala. 397, 60 South. 154; Bessierre v. Ala. City, G. & A. R. R. Co., 179 Ala. 317, 60 South. 82; Southern Cotton Oil Co. v. Harris, 175 Ala. 323, 57 South. 854; B. R. L. & P. Co. v. Bush, 175 Ala. 49, 56 South. 731; B. R. L. & P. Co. v. Simpson, 177 Ala. 475, 59 South. 213.

The fact set up in the third replication that the transaction out of which the indebtedness due the plaintiff arose resulted from a request of the defendant does not necessarily show that the indebtedness existed at the time of the transaction between the defendant Taylor, Grover C. Olancy, and the plaintiff, as set up in the plea, and all that the replication avers may be true and yet the indebtedness could have been liquidated without Taylor’s knowing of it. The replication, to be good, must- exclude every intendment that would render the replication insufficient as a complete answer to the plea, and the averments of this replication do not meet the positive averment in the plea that the defendant Taylor did not know that the indebtedness, the basis of the ■suit, existed until the suit was filed.—Scharfenburg v. Town of New Decatur, 155 Ala. 654, 47 South. 95.

This disposes of all questions presented, and, there being no reversible error in the record, the judgment must be affirmed.

Affirmed.