Southern Indemnity Ass'n v. Ridgway , 190 Ala. 334 ( 1914 )

SAYRE, J.—

(1) The argument, in substance, against count 1 of the complaint, is that, having set out a part of the policy of insurance sued on, the entire policy should have been set out in verbis, for, non constat, the part not appearing contained conditions precedent the performance of which by plaintiff should have been alleged. It was enough to set out the consideration and that part of the promise of which a breach was alleged along with the general averment that plaintiff had complied with all the provisions of the contract on his part, as did the count in this case. — Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538. There is nothing to- the contrary in Pennsylvania Casualty Co. v. Perdue, 164 Ala. 508, 51 South. 352. There was in that case no question about the performance by plaintiff of a condition precedent, though in substance the rule of Brooklyn Life Ins. Co. v. Bledsoe was repeated — unnecessarily perhaps. The question there at issue was whether the complaint showed a loss, or the happening of the event on which, within the terms and meaning of the policy, the liability of the insured could attach in any event, as of course it should have done. As to- that, the complaint alleged, only that defendant was “liable.” This was held insufficient, the language of the opinion intending only that plaintiff should have alleged facts showing a liability according to the terms of the promise declared upon. In the case now before us for decision, the demurrer was properly overruled.

(2) But appellant, taking precaution against an adverse ruling here on its demurrer, further contends in the alternative that the record fails to show a ruling in the court below on that point; that it was entitled to have its tendered issue of law decided; and that, so long as that issue remained undecided, the trial court could not without reversible error pass a judgment by default. That the court did in fact rule upon the demurrer is certain. Whether its ruling is shown by the record in such way as to admit of review in this court may be doubtful under previous decisions of this court. Appellant cites a line of cases on that subject tending, however, correctly, to the conclusion that recitals of the court’s action on demurrer, such as app’ear in the transcript before us, are to be treated as mere memoranda by the clerk, not reviewable on appeal. Conceding for the argument only that the demurrer remained undisposed of, it must result that the recitals of the judgment entry purporting to show the ruling on demurrer be wholly eliminated in the consideration of the assignment of error now in hand. In further consequence, we must assume that the court below failed to act upon appellant’s demurrer for the reason that it was not insisted upon, and so it must be held on appeal that the demurrer was waived, withdrawn, or abandoned The cases so hold.- — Walker v. Cuthbert, 10 Ala. 213; Hart v. Sharpton, 124 Ala. 638, 27 South. 450; Brandon v. Leeds tSate Bank, 186 Ala 519, 65 South. 341.

There is no error in the record.

Affirmed.

McClellan, de Graffenried, and Gardner, JJ., concur.