Myrick v. Carter

Alabama Court of Appeals

Myrick v. Carter

104 So. 559, 20 Ala. App. 616, 1925 Ala. App. LEXIS 123

CourtAlabama Court of Appeals

DecidedMay 19, 1925

Docket8 Div. 308.

StatusPublished

This text of 104 So. 559 (Myrick v. Carter) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Myrick v. Carter, 104 So. 559, 20 Ala. App. 616, 1925 Ala. App. LEXIS 123 (Ala. Ct. App. 1925).

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Opinion

BRICJECEN, P. J.

A careful review of the evidence in this case convinces us that the general affirmative charge requested by appellant as to the first, second, and third counts of the complaint was properly refused. While some of the counts in the complaint aver that the automobile operated by the appellant was the property of his wife, this variance was not pointed out as required by Supreme Court rule 34, 175 Ala. xxi. The question of-appellant’s negligence, the appellee’s contributory negligence, and the amount of damage sustained and the set-off interposed by the appellant under the evidence, was for the jury to decide.- All of these issues were submitted to the jury by the trial court.

The first assignment of error is as follows:

“(1) The court erred when it, of its own motion, instructed the jury not to consider any evidence under defendant’s plea of recoupment. Record, 14, 15.”

An examination of the record on this point discloses the following recital:

“Thereupon the court stated to the jury that they were not to consider any evidence done to the defendant’s car by way of recoupment and under the defendant plea of recoupment as included in his plea of the general issue' in short by consent with leave to give any matter or thing which would be material if specially pleaded. The defendant objected to this ruling of the court and duly excepted to the statement of the court so made to the jury and to the ruling of the court, and in connection therewith the court did say that *617 the plea of said offer of the defendant as included in said general issue was still before the jury.”

This recital in the record is unintelligible. It rests upon the appellant to present a record to this court that clearly shows the ruling complained of, and in assigning error to state concisely in writing in what the error consists. Rule 1, Supreme Court. This court is not called upon to speculate or infer as to what was done or attempted by the court below. The assignment of error is not supported by the record, and is too general to comply with the rule of the Supreme Court. Kinnon, Adm’r, v. L. & N. R. R., 187 Ala. 480, 65 So. 397.

The judgment appealed from is affirmed.

Affirmed.

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BRICJECEN, P. J.

A careful review of the evidence in this case convinces us that the general affirmative charge requested by appellant as to the first, second, and third counts of the complaint was properly refused. While some of the counts in the complaint aver that the automobile operated by the appellant was the property of his wife, this variance was not pointed out as required by Supreme Court rule 34, 175 Ala. xxi. The question of-appellant’s negligence, the appellee’s contributory negligence, and the amount of damage sustained and the set-off interposed by the appellant under the evidence, was for the jury to decide.- All of these issues were submitted to the jury by the trial court.

The first assignment of error is as follows:

“(1) The court erred when it, of its own motion, instructed the jury not to consider any evidence under defendant’s plea of recoupment. Record, 14, 15.”

An examination of the record on this point discloses the following recital:

“Thereupon the court stated to the jury that they were not to consider any evidence done to the defendant’s car by way of recoupment and under the defendant plea of recoupment as included in his plea of the general issue' in short by consent with leave to give any matter or thing which would be material if specially pleaded. The defendant objected to this ruling of the court and duly excepted to the statement of the court so made to the jury and to the ruling of the court, and in connection therewith the court did say that *617 the plea of said offer of the defendant as included in said general issue was still before the jury.”

This recital in the record is unintelligible. It rests upon the appellant to present a record to this court that clearly shows the ruling complained of, and in assigning error to state concisely in writing in what the error consists. Rule 1, Supreme Court. This court is not called upon to speculate or infer as to what was done or attempted by the court below. The assignment of error is not supported by the record, and is too general to comply with the rule of the Supreme Court. Kinnon, Adm’r, v. L. & N. R. R., 187 Ala. 480, 65 So. 397.

The judgment appealed from is affirmed.

Affirmed.

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104 So. 559, 20 Ala. App. 616, 1925 Ala. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myrick-v-carter-alactapp-1925.

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