Morgan v. Embry , 17 Ala. App. 276 ( 1919 )

This court cannot say that the trial court improperly overruled the demurrers to the amended complaint for the reason that the demurrers nowhere appear in the transcript.

Replication No. 2 was subject to demurrer, but it was not subject to the demurrer interposed to it. The demurrers are general, and neither point out any defect in the replication.

The complaint contained two counts one for nonentry of partial payments, and the other for nonentry of total balance unpaid on the margin of the mortgage record. Refused charge No. 3 was inapt, in that it predicated a verdict for the defendant if the plaintiff did not sign or authorize to be signed a notice to "enter upon the margin of the mortgage record the total amount paid on said mortgage." This fact was not embraced within the issues of the case, and what is said in regard to the refusal to give charge 3 may also be said of the refusal to give charge B. The bill of exceptions does not purport to contain all of the evidence, and this court will presume any state of the evidence to support the trial court's action. 1 Enc. Digest Ala. Reports, 506, and authorities there cited. Moreover, the transcript does not contain the court's oral charge to the jury, and the statute expressly provides that the refusal to charge a correct statement of the law "shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge," and this court, in the absence of such oral charge, will indulge the presumption that the charges, if proper in themselves, were refused because the same rule of law had been "substantially and fairly" given to the jury in such oral charge. Southern Express Co. v. Malone, 16 Ala. App. 414,78 So. 408; Lasby v. State, 16 Ala. App. 479, 79 So. 153.

The affirmative charge as asked for should not have been given. It was improper in form. A. G. S. R. R. v. Bonner (Sup.) 39 So. 619; Kress v. Lawrence, 158 Ala. 652, 47 So. 574. And then the bill of exceptions did not purport to contain all the evidence.

The jury returned a verdict as follows: "We, the jury, find a verdict in favor of the plaintiff on one count (of $200)." Appellant insists that the verdict and judgment was predicated upon count 2, rather than count 1 of the complaint, and that count 2 is predicated on an invalid act. Whether the act amendatory of the Code, upon which count 2 is predicated, is invalid, is unnecessary to decide, for where a complaint contains a good count and a bad count, and the verdict is general without specifying upon which count it is based, the judgment will be referred to the valid count. Turnipseed v. Burton, 4 Ala. App. 612, 58 So. 959.

This disposes of all assignments of error insisted upon by appellant, and it follows that the case must be affirmed.

Affirmed.