Esters v. Hurt

Supreme Court of Alabama

Esters v. Hurt

43 So. 565, 150 Ala. 443, 1907 Ala. LEXIS 373

DecidedApril 11, 1907

StatusPublished

This text of 43 So. 565 (Esters v. Hurt) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Esters v. Hurt, 43 So. 565, 150 Ala. 443, 1907 Ala. LEXIS 373 (Ala. 1907).

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Opinion

ANDERSON, J.

The judgment entry shows that after demurrers were sustained to the complaint the court stated “that under no state of facts could the defendant be held liable. Thereupon the plaintiff, declining to plead over, takes a nonsuit.” The assignments of error do not relate to the ruling of the court on the demurrers, but to the ruling 'or statement of the court to the effect that the plaintiff could not recover under any state of facts. What was said was the mere opinion of the trial judge, and was not such a ruling as can be reviewed on this appeal. If the trial court erred in sustaining the demurrers, the plaintiff should assign such ruling as error, which was not done. On the other hand, he should not have abandoned his action because of the opinion of the judge, but should have amended his complaint and gotten a further ruling thereon, in order to review the action of the court for anything done after sustaining the first and only demurrers. Of course, there are instances when remarks and expressions of the trial court will be considered upon bill of exceptions, where such remarks and expressions may influence a jury, to the prejudice of a party upon trial of a cause; but upon appeals like the present one, where nothing is involved' except questions of pleading, we can only reverse the trial court when the appellant shows that error was commit[445]*445ted in the rulings, and said rulings are assigned as error, and will not consider mere expressions and-opinions of the trial judge.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and Simpson, JJ., concur.

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ANDERSON, J.

The judgment entry shows that after demurrers were sustained to the complaint the court stated “that under no state of facts could the defendant be held liable. Thereupon the plaintiff, declining to plead over, takes a nonsuit.” The assignments of error do not relate to the ruling of the court on the demurrers, but to the ruling 'or statement of the court to the effect that the plaintiff could not recover under any state of facts. What was said was the mere opinion of the trial judge, and was not such a ruling as can be reviewed on this appeal. If the trial court erred in sustaining the demurrers, the plaintiff should assign such ruling as error, which was not done. On the other hand, he should not have abandoned his action because of the opinion of the judge, but should have amended his complaint and gotten a further ruling thereon, in order to review the action of the court for anything done after sustaining the first and only demurrers. Of course, there are instances when remarks and expressions of the trial court will be considered upon bill of exceptions, where such remarks and expressions may influence a jury, to the prejudice of a party upon trial of a cause; but upon appeals like the present one, where nothing is involved' except questions of pleading, we can only reverse the trial court when the appellant shows that error was commit[445]*445ted in the rulings, and said rulings are assigned as error, and will not consider mere expressions and-opinions of the trial judge.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and Simpson, JJ., concur.

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Bluebook (online)

43 So. 565, 150 Ala. 443, 1907 Ala. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esters-v-hurt-ala-1907.