Hester v. Ballard , 96 Ala. 410 ( 1892 )

STONE, G. J.

The defendant treated and pleaded to the complaint as containing four counts, and he demurred to what he styled the second and fourth counts. The argument submitted proves that the demurrer was aimed at that part of the complaint which claims attorney’s fees, the same being stipulated for in the replevy bond sued on. According to our interpretation of the complaint, it contains but two counts, — the parts treated as second and fourth counts being only parts of the first and second counts. Except in suits on bonds, assigning special breaches, a demurrer is not the proper mode of raising an objection which applies to only a part of the complaint. — Pryor v. Beck, 21 Ala. 393. Without pronouncing on plaintiff’s right to recover attorney’s fees, we have no hesitancy in declaring that the cpiestion is not so raised as that we can consider it. It is not properly raised for another reason. There is no fourth count in the complaint, and the second count undoubtedly contains a good cause of action, independent of the concluding clause, which asserts the claim for attorney’s fees.

It would seem, however, that the defendant suffered no injury from the Circuit Court’s ruling, even if we concede the claim of attorney’s fees were improper. The amount of the verdict and judgment proves that there could not have been any recovery on that claim. The amount of the recovery in tbe attachment suit against tbe Yeals, ont of which the present action grew, with interest added to that amount, -accounts substantially for the recovery in this case.

If there be any thing in the objection that defendant signed the bond only with his mark, (Code, § 1,) we hold the sheriff’s signature was a sufficient attestation in this case.

Affirmed.