Nashville, Chattanooga & St. Louis Railway v. Bates , 133 Ala. 447 ( 1901 )

DOWDELL, J.

The complaint alleges a wrongful ejection of the plaintiff from the defendant’s train by the conductor, and npon which the plaintiff had purchased a ticket to ride. The damages claimed are based upon the wrongful act, and the. action is clearly one in tort.

, The assignment of error based on the ruling of the court on the defendant’s demurrer to the complaint is not insisted on in argument. Moreover, we think the complaint states sufficiently the cause of action, and the demurrer was without merit.

The defendant filed five pleas, the first being the general issue. Demurrers were sustained to the 2d, 3d, 4th and 5th pleas, and this action of the court constitutes appellant’s second assignment of error on the record. The second plea, to which demurrer was sustained amounted to nothing more than a denial of the plaintiff’s right on the train. It set up no matter in defense of the act, which was not available under the plea of the general issue. Every benefit the defendant could possibly have under this plea was likewise open to it .under the plea of the general issue. So if there was error in sustaining the demurrer to the plea, it was clearly error without injury. See L. & N. R. R. Co. v. Hall, 131 Ala. 161, and authorities there cited.

The 3d, 4th and 5th pleas are manifestly bad. They are not good as pleas in confession and avoidance, nor do they, or either of them, deny the allegations of the complaint. The court properly sustained the demurrers to these pleas.

The remaining assignments of error are based npon matters arising in what appears in the transcript, and was intended, to be a bill of exceptions. That which in the transcript purports to be a bill was never signed by the presiding judge. It is attempted to be made a part of the record, as a bill of exceptions, by the agreement of counsel. This cannot be done. This subject is controlled by the statute. The statute provides in cases of failure or refusal of the judge to sign a bill of exceptions, how the same may be established. Unless tlie bill of exceptions becomes a part of the record pursuant to the requirements of the statute, it cannot be looked to or considered for any purpose. Such being the case there is nothing to support these assignments.

We find no error in the record, and the judgment must be affirmed.