Davis v. Stanley

94 So. 185, 18 Ala. App. 647, 1922 Ala. App. LEXIS 280

• Court: Alabama Court of Appeals
• Decided: October 24, 1922
• Docket: 8 Div. 900.
• Status: Published

Opinion

SAMFORD, J.

The only assignment of error is the court’s refusal to give at the request of defendant the general affirmative charge. The cause was submitted to the jury oil the plea of the general issue, evidence was introduced' without objection, and the court charged the jury defining the issues as made by the evidence.

“In all cases where there is a variance between the allegations and the proof and which could be cured by amendment to the pleading, * * * the trial court will not be put in error for refusing the general' charge predicated upon such variance, unless it appears from the record that the variance was brought to the attention of the trial court by a proper objection to the evidence.” Circuit court rule 34 (175 Ala. xxi).

The appellant failed to comply with this rule, and on that ground is not entitled to a reversal.

Let the judgment be affirmed.

Affirmed.