Burton v. Phillips

WALKER, P. J,

The first assignment of error is as folloAvs: “The court erred in overruling defendant’s demurrers to the first and second counts of the complaint.” Obviously tbe second count was not subjected to demurer on either of the grounds stated. The counsel for the appellant do not even .claim in argument that the demurrers to that count should have been sustained. When two or more rulings are embraced in one assignment of error, if either of the rulings was free from error, the appellant can take nothing by the assignment, as a single assignment of error, to be supported, must be good in whole.—Brent v. Baldwin, 160 Ala. 635, 49 South. 343.

This is a suit to recover the statutory penalty for the alleged failure of the defendant to enter payments on the margin of the record of a mortgage executed by the plaintiffs to her. C. W. Phillips, one of the plaintiffs, was the first witness examined in their behalf. He testified that the mortgage was given for the price of real estate purchased from the defendant, and that it and the notes secured by it were executed and bore date July 10, 1899. His testimony also tended to show that payments had been made on the mortgage. There was nothing in his testimony to indicate how the question as to whether a person other than the mortgagors, Squire Wright, was or was not indebted to the defendant- before the mortgage was executed, could be at all relevant or material to any issue in the case. At this stage of the trial the witness was asked on his cross-examination: “Didn’t you know that Squire Wright was owing Mrs. Burton a debt on July 1, 1899?”

In the absence of any disclosure to the court as to how the answer of the witness to the question could be relevant or material testimony, it is not to be charged with error because of its action in sustaining an objection to the question. It may be conceded that, in the light of subsequent developments in the trial, an affirmative answer to the question might have had some tendeucy to sustain a contention advanced by the testimony of the defendant. But, at the time the question was asked, the court was justified in treating it as an inquiry in reference to a matter foreign to the issues in the case. As the bill of exceptions does not show' that it Avas then made knoAvn hoAV the ansAver of the witness to the question might have a. bearing on the issue in the case, the court is not to be charged Avith error because of its refusal to permit the prosecution of an inquiry then apparently irrelevant and immaterial.

There Avas no error in the refusal of the court to exclude the answer of the Avitness Invin Wright to the question in reference to a conversation between John PoAvell and the defendant, on the ground that no predicate had been laid for the admission of the proof. The matter deposed to was an admission by the defendant as to the subject in controversy in the case. If the testimony is of such a character as to constitute an admission by the adverse party to the suit, it is not necessary to lay a predicate or foundation for the reception of the evidence. Jones on Evidence, § 236. The rule as to laying a predicate for the admission of proof of contradictory statements made by a witness has no application here.

The refusal of the court to give charges 2, 3, 5, and 6 requested by the defendant is made the subject of one assignment of error. Some, if not all, of those charges were obviously faulty. Besides, this assignment of error is to be treated as waived, as the counsel for the appellant do no more in the way of argument in support of it than mention the four charges and assert that the court erred in refusing to give them.—Fitts v. Phoenix Co., 153 Ala. 635, 45 South. 150.

Affirmed.