Zavelo v. Leichtman, Goodman & Co. , 171 Ala. 65 ( 1911 )

DOWDELL, C. J.

This case was tried by the court below without the intervention of a jury, and a judgment rendered in favor of the plaintiffs, from which the defendant appeals.

There is no bill of exceptions in the record, and the assignments of error relate alone to the rulings of the court on the pleadings. The first five assignments of error are predicated on the court’s action in overruling defendant’s demurrers to the complaint as amended. These assignments of error are not discussed in appellant’s brief. They are merely referred to in the statement of the ease. This is not such an insistence in argument as entitles them to consideration in this court (Pearson v. Adams, 129 Ala. 157, 29 South. 977, and cases there cited) ; and with this comment we might pass them by. However, we have examined them, and we fail to see that any error was committed in overruling the demurrers. These demurrers were interposed to counts 2 and 3 as originally filed, and afterwards refiled to the counts as amended. The counts as amended met the objections pointed out in the demurrers. The demurrer to the complaint as a whole, for misjoinder in joining a count in trover with counts in case, is without merit. Code 1907, § 5329.

There were five pleas filed to the complaint; the first being the general issue, and the rest, special pleas. Demurrers were interposed to each.of these special pleas; but no ruling was had on the demurrer to special plea 3, and consequently the assignment of error as to any ruling on demurrer to this plea is without foundation. Where the .record fails to show any action taken by the court on a demurrer, in order to support the judgment of the court the presumption on appeal is that the demurrer was withdrawn or abandoned. This is the settled rule of this court.

A demurrer to plea 2 was sustained so far as the plea purported to answer counts 2 and 3 of the complaint, but was overruled so far as it purported to answer count 1.

To plea 4, which purported to answer the whole complaint, a demurrer was sustained, and so to plea 5, which purported to answer count 1 only.

These several rulings are separately assigned as error.

Besides the general issue, the case was tried on plea 2 as an answer to count 1, and on special plea 3, which answered counts 2 and 3.

The principle seems to he settled on reason and authority that, where a demurrer is improperly sustained to a plea, the error is harmless and will not work a reversal when there are other pleas not demurred to, which set up substantially the same matters of defense as did the plea demurred to, and the party has the benefit of a trial on such other pleas.—Holmes v. Bank, 120 Ala. 493, 24 South. 959; First National Bank v. Chandler, 144 Ala. 286, 39 South, 822, 113 Am. St. Rep. 39, and cases there cited.

Plea 2, as an answer to the first count, set up substantially the same defense as did plea 5, which was ad-' dressed alone to count 1, and to which a demurrer was ' sutained. The same evidence required to support plea 5 would have supported plea 2. Consequently, if there was error in the ruling on the demurrer to plea 5, it-was harmless error. For like reasons the ruling on the demurrer to plea 2 as an answer to counts 2 and 3 of the complaint, if error, was harmless, since plea. 3, which remained in as an answer to these counts, set up the, same defense as did plea 2. The same may be said as to the ruling on the demurrer to plea 4, which was addressed to the whole complaint. As an answer to count 1 of the complaint, the defendant had the benefit of the same defense set up in this plea, under plea 2,' which remained in as an answer to the count, and the benefit of the same defense under plea 3 as an answer to counts 2 and 3. So if it should be conceded that there was error in any of these rulings on the demurrers to the pleas, and which we do not decide, it was error without injury.

There is one other assignment of error, and that is on. the action of the court in overruling the motion for a new trial. There is no bill of exceptions in the record, and in this way only can the ruling on the motion be presented for review on appeal; and hence it is not to be considered.

We find no reversible error in the record and the judgment will he affirmed.

Affirmed.

AndersIon, Sayre, and Somerville, JJ., concur.