Davis v. L. & N. R. R.

108 Ala. 660

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

HEAD, J.

When a plea is frivolous or unduly prolix, it may, on motion, stating the ground, be stricken from the file. Lindsey v. Morris & Co. 100 Ala. 546 ; Code §2665. And when a plea contains redundant, surplus, scandalous or other improper matter, the elimination of which not changing the legal effect of the plea, such ob-jectional parts maybe stricken out, on like motion.. But these motions are addressed to the discretion of the trial court; and when causes for their allowance exist, the refusal of the court to allow them is not revisable here. As the party pleading can take nothing, on the trial, by reason of the improper matter, no legal injury can result to the advesse party from the refusal to strike it out. Goldsmith v. Pickard, 27 Ala. 142 ; Perry v. Marsh, 25 Ala. 659. Therefore, if the motions of the appellants, as set out in the bill of exceptions, had been of the character above indicated, the refusals of the court to grant them could not be the subject matter of assignments of error here. But, such was not their character, except it may be that the second plea, before it was amended was frivolous. They were sought to be made to take the places of demurrers, which cannot be done. In fact, they, and the rulings on them, are shown only by the bill of exceptions .and if they were allowed to take the places of demurrers, they could not be considered here, for that reason.

This leaves us nothing more to consider. The bill of exceptions does not purport to set out all the evidence; and we cannot, therefore, pass upon the propriety of the general affirmative charge .which the court gave for the defendant, nor upon the motion for a new trial which was refused. The plaintiffs might, as a matter of right, have had the plea in abatement stricken from the file because not verified ; but no motion was made in that behalf.

Affirmed.-