Southern Ry. Co. v. Milan

199 So. 708, 29 Ala. App. 590, 1940 Ala. App. LEXIS 97

• Court: Alabama Court of Appeals
• Decided: August 6, 1940
• Docket: 8 Div. 959.
• Status: Published

Opinions

On Rehearing.

It is unquestioned that “the degree of kindred must be computed in Alabama according to the rules of the civil law. * * * The civil-law rule is to begin with the intestate and ascend from him to a common ancestor, and descend from that ancestor to the claimant, reckoning a degree for each generation both in ascending and descending.” Johnston v. Pierson, 229 Ala. 85, 155 So. 695, 696, and authorities " cited in the opinion. Here, we should substitute the juror, W. O. Proctor, though apparently very much alive, for the “in'testate;” and Mr. James M. Proctor, ap propriately enough, it would seem, for the “claimant.”

And, applying the rule quoted above, we now conclude, upon further consideration, that the'juror, Proctor, was related to the lawyer, Proctor, within the ninth degree — specifically, in the eighth degree, and not in the tenth, as announced by us in our opinion on original submission.

But the inhibited juror did not sit on the trial of the case. His name was merely placed, erroneously as appears, upon the list from which the parties were required to “strike,” in selecting the jury that did decide the issues. It was duly “stricken off” by appellant.

And, for aught that is made to appear, we are unable to say that the error, noted, “probably injuriously affected substantial rights” of the appellant. So, under Supreme Court Rule 45, we would not order a reversal of the judgment on account of same.

It is now definitely settled that not only must the appellant show error, but that he has been injured thereby.

The application for rehearing is overruled.

Opinion extended. Application for rehearing overruled.

PER CURIAM.

Reversed and remanded under provisions of Code 1923, § 7318.