Louisville & Nashville R. R. v. McCool , 167 Ala. 644 ( 1910 )

McCLELLAN, J.

Detinue by appellee for chattels in possessin of the appellant as a common carrier and consigned to appellee. The appeal is on the record, only; and the assignments of error insisted upon in brief for appellant relate, alone, to rulings sustaining demurrers to peas 2, 3, and 4.

There are no demurrers assailing pleas 3 and 4, set out in the transcript. Hence, assignments predicated on these rulings cannot be reviewed. — 1 May. Dig. p. 181, subhead 945. We are, hence, remitted to a consideration of the propriety of the action of the court in sustaining demurrers to plea 2. This plea, as well as the demurrers thereto, will be set out in the report of the appeal.

The demurrers, evidently written on separate papers, were filed on the same day. Taking them in the order in which they appear in the transcript, the first two assail, quoted in their caption, parts only of the plea. Demurrer does not lie to a part of a count or plea, except in suits on bonds assigning special breaches.— Hester v. Ballard, 96 Ala. 410, 11 South. 427; A. G. S. R. R. Co. v. Tapia, 94 Ala. 226, 10 South. 286; Corpening Co. v. Worthington & Co., 99 Ala. 541, 12 South. 426 — among others.

If the matter alleged in plea 2 would bar the plaintiff’s right to recover, it is evident that such matter could have been shown under the general issue pleaded in the cause. Under such circumstances, no prejudicial error, to defendant, resulted from the sustaining of demurrer to special plea 2. — N. C. & St. L. Ry. v. Bates, 133 Ala. 447, 32 South. 589; Bennett v. Brooks, 146 Ala. 490, 41 Smith. 149; Tallassee Falls Co. v. Moore, 158 Ala. 356, 48 South. 593; Meyer Drug Co. v. Puckett, 139 Ala. 331, 35 South. 1019; Southern Railway Co. v. Wilson, 138 Ala. 510, 522, 35 South. 561.

The judgment is affirmed.

Affirmed.

Dowdell, O. J., and Anderson and Sayre, JJ., concur.