Crew v. Heard , 146 Ala. 463 ( 1906 )

HARALSON, J.

This case was tried by the judge without a jury. There ivas no request for a special finding of the facts, and no such finding was had. His conclusion on the testimony introduced as shown only by the judgment, is therefore not reversible. — §§ 3319-3321, code 1896; W. U. Tel Co. v. White, 129 Ala. 188, 30 South. 279, and cases there cited.

Only one exception reserved upon the trial, to ruling on the admission of evidence, is insisted on. It is the refusal of the court to allow the .witness, Wiley Ray, against plaintiff’s objection, to answer the question, “Were you insolvent at the time?” At what time is not stated in the question, nor- does it appear with any degree of certainty by reference to the testimony of the witness, given preceding the question, to wha.t transaction detailed by him, with respect to the period of time such transaction accrued, to which the question asked related.

If it was intended to show that witness was insolvent when he carried certain cattle to Birmingham, and construing the bill of exceptions most strongly against the appellant, which we must do, this must be taken as the one referred to in the question. His insolvency at that time, which may have been long subsequent to the alleged. acquisition by him fraudulently of certain goods, was wholly immaterial. The objection was, therefore, properly sustained to it.

The motion to dismiss the suit was not the proper way to raise the question of the jurisdiction of the justice of the peace who tried the case. That question should have been raised by a plea filed in his court. Besides, no ruling upon the motion is shown in the judgment entry.

It is next insisted that the court erred in rendering-judgment against the defendant R. H. Crews and the sureties on the appeal bond for all the costs of the suit. The action, it is contended, being against three defendants and the plaintiff only recovering judgment against one, R. H. Crews, .the two other defendants against whom plaintiff failed to recover were entitled to a judgment for their aliquot part of the costs. This contention is nothing more than the rule prescribed bv the statute.— § 1331, code 1896.

The action having abated as to the two defendants by the death of R. A. Crews during its pendency, and there being no reviver as against his representative, no judgment can be rendered in their favor. The statute, therefore, is without application. Besides, if it were otherwise, the appellant cannot complain of it, they being the only ones concerned, and having the right to have the judgment corrected in this court.

Affirmed.

All the justices concur.