Roberts v. Cleburne County , 116 Ala. 378 ( 1896 )

COLEMAN, J.

This action was t'o recover damages sustained by reason of the falling in of abridge. According to the judgment entry, there was no ruling of the court upon the demurrer to the original complaint. It recites that the defendant’s demurrer to counts one, two and three of amended complaint were sustained, and then states “that plaintiff by leave of the court, amends his complaint in each count thereof, and issue being joined upon defendant’s pleas, thereupon came a jury,” etc. The only reference submitted by appellant, to show that the court erred in sustaining the demurrer of the defendant to the complaint as first amended, is that the complaint states facts sufficient for recovery under section 1456 of the Code of 1886. No argument is made and no authority cited to sustain the assignment, other than the foregoing simple assertion “that the complaint is sufficient.” When counsel do not deem an exception of sufficient merit to entitle it to consideration, it can hardly be expected of the court to attach to it any more weight. There was, however, certainly no error injurious to appellant, inasmuch as he had the full benefit of all proper and necessaiy averments of the complaint upon which issue was joined, and there were no averments in the complaint upon which the cause was tried, that were not necessary to a recovery.

After the evidence closed, the court gave the affirmative charge for the defendant. In this • there was no error. There was no evidence introduced on the trial, that plaintiff ever presented his claim to the- court of county commissioners “to be passed upon or allowed” by tlie court as required in section 902 of the Code of 1886. — Schroeder v. Colbert County, 66 Ala. 137.

The evidence affirmatively showed that the bridge was not erected by contract with tlie county commissioners as provided by section 1456 of the Code of 1886, under which the plaintiff sought to fix a liability upon the county.

Affirmed.