Wright v. Kansas City M. & B. R. R.

Supreme Court of Alabama

Wright v. Kansas City M. & B. R. R.

43 So. 480, 150 Ala. 316, 1907 Ala. LEXIS 356

DecidedApril 4, 1907

StatusPublished

This text of 43 So. 480 (Wright v. Kansas City M. & B. R. R.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wright v. Kansas City M. & B. R. R., 43 So. 480, 150 Ala. 316, 1907 Ala. LEXIS 356 (Ala. 1907).

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Opinion

DOWDELL, J.

The complaint contained three counts. To the complaint the defendant filed the plea of the general issue and three special pleas. The plaintiff filed demurrers to the special pleas, which said demurrers were overruled. The plaintiff then filed replications to the defendant’s special pleas, some of which replications were stricken on defendant’s motion, while to the others demurrers interposed by the defendant were sustained. At this stage of the pleading, the judgment entry recites that the plaintiff declined to plead further, “and issue being joined on the plea of the general issue February 20, 1906, thereupon comes a jury of good and lawful men.” etc., and then follows the verdict of the jury in favor of the defendant and judgment thereon by the court. It thus affirmatively appears from the record that the case was not tried on-the three special pleas of the defendant, but alone upon the plea of the general issue. The bill of exceptions does not purport to set out the evidence or its tendencies, and only states that “after hearing all the evidence in the case the jury returned a verdict in favor of the defendant, upon which verdict judgment was entered by the court.”

The only errors assigned on the record relate to the rulings of the court on demurrers to the three special pleas and demurrers to and motions to strike replications to these pleas. It is plain from the foregoing [318]*318statement, if any error was committed by tbe court in its rulings as to the special pleas and replications, the appellant is in no position to complain, since it affirmatively appears that the case was not tried on the three special pleas of the defendant. To uphold the judgment of the court, it will be presumed that the defendant abandoned the three special pleas, and the plaintiff thereby occupied the same position as if these pleas had been ruled out on his demurrers. We find no reversible error in the record, and the judgment appealed from will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.

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DOWDELL, J.

The complaint contained three counts. To the complaint the defendant filed the plea of the general issue and three special pleas. The plaintiff filed demurrers to the special pleas, which said demurrers were overruled. The plaintiff then filed replications to the defendant’s special pleas, some of which replications were stricken on defendant’s motion, while to the others demurrers interposed by the defendant were sustained. At this stage of the pleading, the judgment entry recites that the plaintiff declined to plead further, “and issue being joined on the plea of the general issue February 20, 1906, thereupon comes a jury of good and lawful men.” etc., and then follows the verdict of the jury in favor of the defendant and judgment thereon by the court. It thus affirmatively appears from the record that the case was not tried on-the three special pleas of the defendant, but alone upon the plea of the general issue. The bill of exceptions does not purport to set out the evidence or its tendencies, and only states that “after hearing all the evidence in the case the jury returned a verdict in favor of the defendant, upon which verdict judgment was entered by the court.”

The only errors assigned on the record relate to the rulings of the court on demurrers to the three special pleas and demurrers to and motions to strike replications to these pleas. It is plain from the foregoing [318]*318statement, if any error was committed by tbe court in its rulings as to the special pleas and replications, the appellant is in no position to complain, since it affirmatively appears that the case was not tried on the three special pleas of the defendant. To uphold the judgment of the court, it will be presumed that the defendant abandoned the three special pleas, and the plaintiff thereby occupied the same position as if these pleas had been ruled out on his demurrers. We find no reversible error in the record, and the judgment appealed from will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.

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Bluebook (online)

43 So. 480, 150 Ala. 316, 1907 Ala. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-kansas-city-m-b-r-r-ala-1907.