Mayor of Birmingham v. Coleman , 111 Ala. 407 ( 1895 )

COLEMAN, J.

The abstract filed-in this case is indefinite, confused and uzzsatisfactory. It shows that defendant’s demurrer was sustained to the first, second, third and fourth cozznts of the complaint. It does not show that these counts were amended, or any other disposition made of them, and yet the demurrant, appellant here, has assigned as error the rulizzg of the couz-t relative to those couzzts. The abstract shows that the plaintiff by leave of the court, added counts five and six. These cozznts are not set out. As to the fifth count, the abstract is as follows : “The fifth count of the complaint alleges about the same state of facts as alleged in the first, second, third azzd fourth counts, and further alleges” &c ; here follows the additional averzzzent. We have italicized the word “about.” The first, secozzd, third and fourth counts, while cozztaizzing some averments, which are the same, each contained different averments and it is clifficzzlt to conceive of a sizzglo cozzzzt which contains substazztially all the facts forzad in these four counts. We cannot say what the pleader iiztended by the use of the word “about,” or what averments in these counts were retained and in what respect, if any, they were changed. The word “about” is too. indefinite to give the mind a satisfactory understanding of what the complaint contained. — Ala. Gr. So. R. R, Co. v. Arnold, 84 Ala. 168.

The statement in the abstract as to the 6th count is subject to the same criticism. It says the sixth count is almost identical in terms with the fifth except it alleges &c. These counts refer to a contract and aver certain duties of the defendant growing out of this contract. The contract nowhere appears in terms in the abstract, nor does it undertake to state substantially'any fact, duty or obligation imposed by the contract. It is impossible for the court to consider satisfactorily the assignments of error. Again, after undertaking to give a’ statement of the facts in the case, followed by the statement, “this was substantially all the evidence,” we have under the head of exceptions, the rulings of the court admitting other evidence against the objection of the defendant, which additional evidence does not appear in the “statement of the facts of the case.” The rulings of the court upon the pleas are equally confused.

The plaintiff sued to recover damages for injuries sustained by falling through a hole in a bridge in the city of Birmingham. It averred the negligence of the defendant, the Mayor and Aldermen of the City of Birmingham, in not repairing the bridge. This we understand to be the duty imposed by law. By an additional everment, after setting out the injury, and the cause, the complaint averred, that it was the duty of the defendant, by virtue of a contract with the Elyton Land Company, to repair the bridge. In both counts the injury was the same, and the cause of the injury the same. In'one count the duty to repair was imposed by law, in the other by contract. The abstract is insufficient to show affimativTely a misjoinder of causes of action, or a departure in the cause of action, so as to authorize a successful interposition of the plea of the statue of limitations of one year. — Insurance Co. v. DeJarnette, ante. p. 248.

Whether there was a joint liability of the city and the Elyton Land Company, growing out of the contract, would depend entirely upon the provisions of the contract. No provision of. the contract is stated in the abstract. Neither can we determine the relevancy or irrelevancy of the evidence to which exceptions were reserved, were we disposed to consider them. The judgment is affirmed.