McCain Bros. v. Street

136 Ala. 625

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

DOWDELL, J.

Hidings ou motions made in the trial court, will not be considered an appeal, unless presented by bill of exceptions.' This has been repeatedly-decided by this court, and the rule is too well established to now admit of controversy. No bill of exceptions was reserved in this case.

There was no error in overruling the plea in abate-bent filed by the claimants, from which any injury resulted to them. This plea might have properly been stricken from the file on motion. The plea could only be filed by the defendant in attachment. — § 563, Code of 1896. The matter set up in abatement was not such as the claimants could take advantage of. Moreover, the record shows that an. affidavit was made by the plaintiff before the issuance of the attachment, but was not subscribed to, and was afterwards amended, which was permissible. — § 564, Code of 1896.

The question as to a variance between bond and affidavit, if one that the claimants could raise, cannot be raised for the first time after appeal to this court.— Fears v. Thompson, 82 Ala. 294.

The case was tried by the court without a jury. At the request of the claimants, there was a special finding by tiie court on the facts. Whether this was proper and authorized under the special act creating the county court of Clay, — Local Acts 1898-9, pp. 176-182 — which provides the rules of practice as to trials by jury or by the court, we need not decide. In the absence of a statute prescribing a different rule, the special finding of the court, and the judgment rendered on such special finding, cannot be reviewed on appeal, unless presented by bill of exceptions. There is no provision in the special act creating the county court of Clay, which prescribes a different rule from that above stated. There is no bill of exceptions in the record, and the judgment, therefore, cannot be reviewed.

Affirmed.