Oliver v. Dexter

116 So. 526, 217 Ala. 438, 1928 Ala. LEXIS 5

• Court: Supreme Court of Alabama
• Decided: April 12, 1928
• Docket: 6 Div. 97.
• Status: Published

Opinion

BOUDDIN, J.

The appeal is oh the record without bill of exceptions.

The record does not contain any demurrer directed to counts 5 and 7 of the complaint as amended. The record shows these counts were filed on the day of the trial, January 19, 1927. The judgment entry indicates demurrers were filed to the amended complaint, but the only demurrers in the record are those filed June 26, 1926, addressed to the original complaint. Nothing shows these grounds of demurrer were refiled or reassigned to the amended complaint. The rulings on demurrer to counts 5 and 7 are, therefore, not subject to review.

However, the point raised in brief, to the effect that count 7, for breach of a rental contract in writing, which the count recites, was thereto attached, was subject to demurrer because it was not attached, is not borne out by the record.

The count is immediately followed in the record by such contract, all under one filing, and will be construed as part of the pleading, especially where the record only purports to set out pleadings and not evidence.

The refusal of a motion for new trial because not supported by the evidence cannot, as matter of course, be reviewed in the absence of a bill of exceptions setting out the evidence.

Affirmed.

ANDERSON, O. J., and SAYRE and BROWN, JJ., concur.