General Accident, Fire & Life Ins. v. Shields , 9 Ala. App. 214 ( 1913 )

WALKER, P. J. —

The rulings of the court referred to in the assignments of error, based upon the overruling of demurrers to certain counts of the complaint as amended, were made in October, 1911, at which time there was a mistrial of the case. The minutes of the proceedings of the court in the subsequent trial, which resulted in the judgment appealed from, commence with the following statement: “On this the 13th day of March, 1912, this cause being reached on the docket and called for trial, came the parties by their attorneys, and the plaintiff by leave of the court first had and obtained amends her complaint, as appears by a separate paper writing this day filed, and issue being joined, thereupon came a jury of good and lawful men,” etc. The transcript does not set out the “separate paper writing” referred to in this recital, or in any way show how the complaint was amended at that time. The minute entry affirmatively shows that the trial resulting in the judgment appealed from was had, not on the complaint as it stood when the demurrers referred to in the assignments of error were ruled on, hut upon the complaint as it was last amended. Under the rule requiring an appellate court to indulge all presumptions in favor of t-he correctness of the judgment appealed from, the result of the record showing that the complaint was amended after the overruling of the demurrers to it, and failing to show how it was amended, is to give rise to a presumption that it ivas so amended as to obviate the objections which were pointed out in the demurrers to it which had been interposed before it was last changed by amendment. — Birmingham Railway, Light & Power Co. v. Fox, 174 Ala. 657, 56 South. 1013.

The appellant cannot complain of the overruling of demurrers to a complaint which the record affirmatively shows was not the complaint upon, which it ivas put to trial, especially in the absence of any showing by the record that the complaint, as last amended, was demurred to, or was subject to any of the objections which, by demurrers, had been made to the complaint before it was so changed.

We cannot adopt the suggestion made in the argument of the counsel for the appellant that the certificate of the clerk to the transcript sent up on this appeal, to the effect that it contains a full, true, correct, and complete copy or transcript of the record and proceedings in the cause, would, in view of the fact that it sets out no such paper as that mentioned in the above quotation .from the judgment entry, justify the conclusion that 'the complaint urns not in fact amended as there stated. All orders and entries made in the regular progress of the cause during term time must be received as emanating from the court itself. So far as the parties to the cause are concerned, such a memorial is conclusive evidence of everything it contains, and is not subject to contradiction by a certificate of the clerk as to the contents of the record. — Deslonde & James v. Darrington’s Heirs, 29 Ala. 92.

As the record does not show that any of the special pleas previously filed. Avere refiled after the complaint was last amended, it is to be inferred that those special pleas cut no figure in the trial of the case Avhich resulted in the judgment appealed from. The appellant cannot complain of the action of the court in sustaining demurrers to pleas Avhich were not, by being refiled, sought to he made applicable to the complaint as last amended. — Birmingham Railway, Light & Power Co. v. Fox, supra; Cooley v. United States Savings & Loan Co., 144 Ala. 538, 39 South. 515.

A single assignment of error brings into question the action of the court in overruling objections made to the admission in evidence of two statements contained in the admitted showing of what one Morton Nye, an absent Avitness, would have testified to if he had been present. This assignment cannot be sustained if either of the tAvo statements was properly admitted in evidence, as an assignment of error must fail if it is good in part and bad in part. — Brent v. Baldwin, 160 Ala. 635, 49 South. 343.

The statement that “there Avas blood on the corner of the brick next to the door” was not subject to the objection made to it. In connection Avith other evidence as to the circumstances of finding the insured lying in a dying condition on the ground below the door of his residence with a bruise on tbe back of his bead and blood on bis person, which was close to where tbe brick referred to was discovered, that statement was admissible as furnishing some support for an inference that in falling to tbe ground bis bead bad struck against tbe brick, and that bis death was caused by external, violent, and accidental means.

Of tbe assignments of error based upon tbe court’s refusal to give written charges requested by tbe defendant, tbe only ones wbicb are made subjects of discussion in tbe argument of tbe counsel for tbe appellant are several wbicb instruct tbe jury that if they believe tbe evidence they must find in favor of tbe defendant generally, or on counts of tbe complaint specially mentioned. Without regard to other apparent defects in some of these charges, it is enough to say that tbe result of tbe failure of tbe bill of exceptions to show that it sets out all, or substantially all, of tbe evidence adduced in tbe trial is to leave this court without such knowledge of what tbe evidence was wbicb was referred to in tbe charges as is requisite to enable it intelligently to review tbe rulings made on them. — Southern Hardware & Supply Co. v. Standard Equip. Co., 165 Ala. 582, 51 South. 789. This court cannot undertake to reach a conclusion as to whether or not, under tbe evidence, a finding in favor of tbe plaintiff could properly have been made, when it is not informed what that evidence was.

In tbe brief of the counsel for tbe appellant other rulings on special charges requested are merely mentioned in statements to tbe effect that tbe charge referred to should have been given, and that tbe court is referred to what bad been said in support of tbe contentions that tbe affirmative charges requested by tbe defendant referred to there is no discussion whatever of tbe quessbould have been given. In tbe previous argument so tions raised by the special charges requested. There is a failure to state the points relied on in the form of propositions, as required by the rule governing the method of preparing a brief in behalf of the appellant. —Civil Code, p. 1508, rule 10. The court is not advised as to the grounds upon which the appellant contends that it was entitled to have the charges referred to given. There has been no such insistence in argument on the assignments of error thus summarily dealt with as to put upon the court the duty of reviewing the rulings mentioned in them. An appellant cannot expect his assignments of error to be considered, except in so far as he at least undertakes to point out the grounds upon which he claims that there was error in the rulings of which he complains. — North Alabama Traction Co. v. Taylor, 3 Ala. App. 456, 57 South. 146.

The assignment of error based upon the action of the court in overruling the defendant’s motion for a new trial is sought to be supported by the suggestion that that motion should have been granted because of the showing made as to the discovery of additional evidence. Plainly it is not made to appear that the defendant was entitled to a new trial on the ground mentioned, as there was an entire absence of any showing at all of diligence unavailingly used by the defendant before the trial to discover such evidence, or that the defendant was without fault in failing to discover the evidence referred to in time to have it presented on the trial. — McLeod v. Shelly Mfg. & Improvement Co., 108 Ala. 81, 19 South. 326.

Affirmed.