Arlington Realty Co. v. Lawson

This cause was once before in this court, on appeal by the present appellants. Arlington Realty Co. et al. v. Lawson,228 Ala. 214, 153 So. 425.

On that appeal count A was alone before the court. We then held the count sufficient, and not subject to any grounds of the defendants' demurrer. The judgment of the circuit court was, however, for error in the admission of certain testimony, reversed and remanded.

On remandment of the cause, the defendants did not invoke any action by the court upon the demurrer to count A (so marked by us for convenience), but the trial proceeded upon pleas of the defendants, resulting in another verdict and judgment for the plaintiff.

It is now assigned for error that the court erroneously overruled the demurrers of the defendants. This ruling was a part of the judgment rendered on the first trial, and, of course, was set aside and annulled by the former decision of this court, reversing the judgment of the trial court. The record, as above pointed out, does not show any ruling on the demurrer subsequent to the reversal.

It follows that the rulings on demurrer, now pressed for reversal, are not properly presented for review. The appellants can take nothing by their assignments of error involving the propriety of the court's ruling on the demurrer to count A. Alabama. City, G. A. R. Co. v. Bates, 155 Ala. 347,46 So. 776; Greely-Barnham Grocery Co. v. Cottingham (Ala. Sup.) 39 So. 567; Cottingham v. Greely, 123 Ala. 479, 26 So. 514; Sellers et al. v. Dickert, 194 Ala. 661, 69 So. 604; Marsh v. Elba Bank Trust Co., 205 Ala. 425, 88 So. 423.

However, we may say that, if the sufficiency of count A had again been tested by demurrer properly interposed, and acted upon in the court below since the last appeal, we would hold the complaint sufficient upon the authority of the decision on former appeal.

There is no bill of exceptions in the record, and no errors appearing in the record proper, it follows that the judgment of the circuit court is due to be, and is, affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.