Southern Railway Co. v. Jackson

133 Ala. 384

Opinion

SHARPE, J.

Following precedents set in Gassenheimer v. Marietta Paper Co., 127 Ala. 183, and L. & N. R. R. Co. v. Hall, 131 Ala. 161, the motion to strike the bill; of exceptions from the record of this cause will be granted. The bill violates rule 33 of circuit court practice, in that it contains much of what is in substance repitition of testimony besides much that is not testimony such as remarks of the judge and of counsel, questions not answered and rulings not excepted to and which are wholly unnecessary to be considered in passing on the questions presented for review. It seems to contain a verbatim report of the examination of all the witnesses so that about seventy typewritten pages of the transcript are employed to present a case wherein the facts are comparatively few.

In the assignments of error which are based on the record proper there is nothing to warrant a reversal of the judgment. After the amendments allowed, each count of the complaint which was demurred to averred with sufficient particularity facts showing a cause of action under subdivision 5 of section 1749 of the Code. See Highland, etc., Co. v. Miller, 120 Ala. 538. Plea 2 is bad for generality. — L. & N. R. R. Co. v. Markee, 103 Ala. 160.

By pleas 7 and 8 as amended defendant was given the benefit of all defenses it was entitled to make under those pleas as they stood before the amendment, and, therefore, it was not prejudiced by the judgment sustaining demurrers to the pleas as originally filed. Phoenix Ins. Co. v. Moog, 78 Ala. 284.

Affirmed.