Morton v. Clark , 10 Ala. App. 439 ( 1914 )

WALKER, P. J.

The lack of support for the contention made in the brief of the counsel fob the appellants that “the court erred in overruling the demurrers to the complaint, because it was necessary for said complaint to aver that the said note was transferred in writing,” is apparent, in view of the facts that the demurrer which was overruled was the one to the complaint as it was amended, and that the amended complaint specifically averred that the note sued on was duly transferred and assigned in writing by the payee to the plaintiff before maturity.

In dealing with the assignments of error based upon the action of the court in sustaining demurrers to pleas of the two defendants who are the appellants here, which pleas were separately filed and presented different matters of defense, the brief of the counsel for the appellants by no means complies with the requirement of the rule of practice governing the preparation of a brief for the appellant. — Civil Code, p. 1508, rule 10. Each ground of error is not “separately presented and numbered in proper order,” as required by that rule. The rulings mentioned are dealt Avith all together, without any specification of the particular grounds upon which the several rulings are claimed to be erroneous. The grounds of the alleged errors have not been so pointed out as to cast upon the court the duty of revieAving the rulings so complained of. — Thomas Fraser Lumber Co. v. Henson, 4 Ala. App. 625, 58 South. 812. Besides, the assignment of errors is joint, and not several. It is plain that one defendant is not injured by the sustaining of a demurrer to a plea of another defendant in which the former did not join. A joint assignment of error cannot be sustained, unless the alleged erroneous ruling involved injury to all joining in the assignment. —Lehman, et al. v. Gunn, et al., 154 Ala. 369, 45 South. 620. It follows that none of the assignments of error last mentioned can be sustained.

The deposition of the plaintiff Avas not subject to suppression on either of the grounds stated in the motion made to that end. When the interrogatories were filed, the appellee (plaintiff beloAv) nominated Florence-Wylie, who resides at Tupelo, in the stae of Mississippi, as a suitable person to be appointed commissioner to take his deposition. When the appellants filed their cross-interrogatories, they nominated John M. Witt, who resides at Tupelo, Miss., as a suitable person to act as commissioner. The commission issued by the clerk was addressed “to Florence Wylie and John M. Whitt, residing in Tupelo, in the state of Mississippi, or to such one or more of you as shall act herein.” The deposition was taken, certified, and returned by the nominee of the appellants. The terms of the commission were such as to authorize the persons named as commissioners severally to take and certify the deposition. Under such a commission it is competent for either one of the commissioners to act without the other. — New, et al. v. Young, 144 Ala. 420, 39 South. 201. The authority relied on in this connection by the counsel for the appellants (Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 South. 261), does not support their contention. The commission which was before the court in that case appointed two commissioners “jointly to take the testimony of the witness.” In the case at bar the deposition was taken and certified by the commissioner nominated by the appellants under a commission, issued in conformity with such nomination, which authorized him so to act alone.

A single assignment of error brings into question the action of the court in overruling motions of the defendants to suppress the several answers of the plaintiff to 17 cross-interrogatories propounded to him. If several rulings are included in one assignment of error, all the matters therein complained of must constitute error, or the assignment cannot be sustained. The assignment cannot be sustained if it is bad in part. — Brent v. Baldwin, 160 Ala. 635, 49 South. 343; Smith v. Roney (Sup.) 62 South. 753. Certainly some of the cross-interrogatories were fully answered without the slightest evasion. In the brief of the counsel for the appellants they do not undertake to point out wherein a single answer to a cross-interrogatory failed to respond to it, or was evasive. An appellate court is not to be expected to hunt for errors which the counsel for the appellant do not undertake to point out. However, we have examined the answers to the several cross-interrogatories and have not found that they were subject to the complaints made of them. It was the fault of some of the cross-interrogatories themselves that they failed to elicit the answers expected, as they did not refer to the note sued on, but had reference to a specifically described note, all connection with or knowledge of which the witness disclaimed.

The joint assignment of error based upon the action of the court in sustaining motions of the plaintiff to strike portions of several pleas filed by the defendant J. E. Morton cannot be sustained. The appellant Mattie Morton did not except to those rulings, and, furthermore, she was not injured by them.

While the defendant John A. Cobb had not employed an attorney to represent him in the case, he had filed a plea of the general issue, was present at the trial, and demanded the right to strike in the selection of a struck jury. It was not improper for the court to permit him to strike two of the names on the list of 24 jurors from which the struck jury was to be selected.— Code, § 4635; Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72.

The eighteenth assignment of error is as follows:

“The court erred in overruling the objection of the defendants J. E.. Morton and Mattie Morton to the taking of the deposition of B. T. Clark.”

The bill of exceptions does not show that the objection referred to was in any way called to the attention of the trial court, or that there was any ruling on the objection or exception taken to such a ruling. It follows that this assignment of error cannot be sustained. No such ruling as is mentioned in it is presented for review.

A single assignment of error is directed against the action of the court in overruling the separate and several objections interposed by the appellants to each of the 11 direct interrogatories propounded to the appellee. Plainly several of those interrogatories were unobjectionable in any respect. It follows that the assignment, embracing as it does, rulings in which there was no error, cannot be sustained.

There has been no such insistence in argument on any of the remaining assignments of error as to put upon the court the duty of reviewing the rulings referred to. In the brief of counsel for the appellants 17 rulings on as many different questions of evidence, are disposed of in one sentence of four lines which fails to direct the attention of the court to what is regarded as constituting error in either of the rulings referred to. An appellate court cannot in this way be put upon a search for errors which are not specified or insisted on in the manner required by the rule governing the method of preparing a brief in behalf of the appellant. — Civil Code, p. 1508, rule 10; Alabama Steel & Wire Co. v. Sells, et al., 168 Ala. 547, 52 South. 921; Birmingham Railway, Light & Power Co. v. Martin, 148 Ala. 8, 42 South. 618; North Alabama Traction Co. v. Taylor, 3 Ala. App. 456, 57 South. 146.

Affirmed.