Stephens v. Stephens ( 1966 )

GOODWYN, Justice.

Appellant sued appellees for libel. The complaint, as last amended, contained nine-counts. Appellees’ amended demurrer to the amended complaint, and to each count thereof, separately and severally, was sustained generally. In so ruling, the trial court did not specify which of the twenty-five grounds of the amended demurrer it considered to be good as to each of the counts. Appellant declined to plead further and, because of the ruling on the demurrer, moved for a nonsuit. The motion was granted. This appeal followed.

Motion to Dismiss Appeal

Before discussing the merits, we dispose of appellees’ motion to dismiss the appeal. The motion is grounded on the lack of a final judgment to support the appeal. Our conclusion is that the motion is due to be denied.

The question is whether the following is a final judgment, viz.:

“It is therefore, ordered and adjudged by the Court that the defendants go hence without day and have and recover of plaintiff all costs in this cause created, for the recovery of which, let execution issue.”

A similar order has been held to be .a final judgment-which will support an appeal. See: Cooper v. City of Fairhope, 263 Ala. 619, 621, 83 So.2d 321; Davis v. Evans, 261 Ala. 548, 550, 74 So.2d 705, 48 A.L.R.2d 740; Thomas v. White, 244 Ala. 128, 129, 12 So.2d 567, 569. The judgment in the last cited case and the one now before us are almost identical. There, it was said:

“After reciting that plaintiff moved for a non-suit on account of adverse ruling of the court, the minute entry proceeds: ‘It is therefore considered and adjudged by the court that the defendant go hence and have and recover of the plaintiff all costs incurred in this prosecution, for which let execution issue.’

“This order ‘put the case out of court,’ and constitutes a final judgment. Wood v. Coman, 56 Ala. 283, cited approvingly in Martin v. Alabama Power Co., 208 Ala. 212, 94 So. 76. This is in' accord with current authorities. Freeman on Judgments' (5th Ed.) p. 37; 18 Words and Phrases, Perm.Ed., p. 423 ; 2 Am.Jur. pi 867.”

The motion to dismiss the appeal is denied.

Merits

There are twenty-three assignments of error. However, only those challenging the ruling on the demurrer, which superinduced the nonsuit, can be considered. Code 1940, Tit. 7, § 819; Almon v. Commission of Education of Cullman County, 265 Ala. 489, 491(5), 92 So.2d 35; Carter v. City of Gadsden, 264 Ala. 544, 547(3), 88 So.2d 689.

Each count of the complaint is tested by each ground of the demurrer; and if any ground of the demurrer is good as to any count of the complaint, the sustaining of the demurrer was not error. The effect of assigning as error the ruling sustaining the demurrer generally is to charge that none of the grounds of the demurrer is good as applied to at least one count of -the complaint. See: Whatley v. Alabama Dry Dock and Shipbuilding Company, 279 Ala. 403, 186 So.2d 117.

We are at the conclusion that at least one ground of the demurrer is good as to count 1 of the complaint.

Count 1 is as follows:

“Plaintiff claims of the Defendants One Hundred Thousand Dollars, damages for falsely and maliciously publishing of and concerning her an affidavit before Hon. O. D. Alsobrook, Probate Judge of Chambers County, Alabama on towit, July 2, 1963 the following matter with intent to defame the Plaintiff, towit, that the Plaintiff, Pearl Lindsey Stephens was insane and that she be placed in the Alabama Bryce Plospital as a patient.”

Appellant apparently takes the position that count 1 is not demurrable because it follows the form prescribed for libel by Code 1940, Tit. 7, § 223, Form 17. It is our view that count 1 does not meet the requirements of Form 17. It has been held that this form requires that the defamatory words be set out in haec verba. See: Cleveland v. Cleveland, 263 Ala. 530, 532, 83 So.2d 281. This is not done in count 1, and there is a ground of demurrer specifically pointing out this defect.

There is no occasion to determine whether grounds of the demurrer are good as to the other counts.

Motion to dismiss the appeal denied.

Affirmed.

All the Justices concur.