Hayes v. Solomon

90 Ala. 520

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

CLOPTON, J.

The court having given a general charge, to which no exception was taken at the time, the jury retired to consider their verdict. After remaining but a short time, they returned, and asked further instructions, which the court gave; and while the jury were in the act of retiring the second time, defendant excepted to a part of the general charge given in the first instance. Section 2758 of the Code prescribes ; “Either paity in any civil case, during the trial of the cause, may reserve by bill of exceptions any charge, opinion or decision of the court touching the cause of action, which would not otherwise appear of record.” Under the statute, the rule recognized in practice has been, that the exception must be taken before the jury leave the bar.—City Council of Montgomery v. Gilmer, 32 Ala. 116; Reynolds v. State, 68 Ala. 507. The exception came too late.

The motion in arrest of judgment was based on the ground, that one count in the complaint is insufficient and defective for reasons specially assigned; Whether judgment should be arrested because of amendable defects in the complaint, it is not necessary to decide. The finding of the jury was general. Since the statute of 1824, of which section 2835 of the Code is a substantial re-enactment, a general finding, when the complaint contains good and bad counts, has been referred to the good counts. That section provides : “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contains a substantial cause of action.” It is not controverted, that one of the counts in the complaint sets forth a substantial cause of action; and the defective count was not previously objected to. The motion was properly overruled.

Affirmed.