Adams v. Bibby, 69 So. 588

Adams v. Bibby

69 So. 588 | Ala. | 1915

ANDERSON, C. J.—

(1) It is no doubt the rule that it is essential to a valid judgment that it should desig*654nate the parties for and against whom it is given, yet when in the body of the judgment it is in favor of the plaintiff or plaintiffs and against the defendant or defendants in general terms, the parties in whose favor and against whom, respectively, it is rendered, are to be ascertained, not alone by looking to the memorandum at the head entry, but also to the pleadings and the process, with the return thereon, which indicate who' are before the court as plaintiffs and defendants, and in what capacities, respectively, they are parties. — Bolling v. Speller, 96 Ala. 270, 11 South. 300; Blackman v. Moore, 106 Ala. 458, 17 South. 629; Fletcher v. Riley, 169 Ala. 433, 53 South. 816. The caption of the complaint in the present case sets out the names of John H. Adams, James Weisell, Isaac F. Perkins, and Francis M. Fletcher, as “defendant.” The body of the judgment entry is in favor of the “plaintiff” against the “defendant,” while the caption to the judgment entry describes John H. Adams and James Weisell as defendants. If we are to be controlled by the body of the judgment entry alone, it is against a defendant in the singular; if we are to be controlled by the caption to the said judgment- entry, then it is against Adams and Weisell only, and not the other two| defendants. On the other hand, if we look to the pleading and process and the return thereon, in connection with the judgment entry, we are constrained to hold that the present judgment is against Adams alone. While all four of the appellants were set out in the caption of the complaint, the record discloses no summons or service against all or any of the parties, and the only pleas filed seem to be by John H. Adams only.

(2) It is true that the body of the judgment says “plaintiff,” and not “plaintiffs;” but the caption thereof sets out all three of the plaintiffs, and therefore con*655forms to the complaint, and the judgment must be construed as being in favor of all three of said plaintiffs, who sued and who are named in the appeal as appellees. “It is a settled rule that assignments of error made jointly by all defendants, as to matters prejudicial to some of them only, will be disregarded.” — Davis v. Vandiver, 160 Ala. 454, 49 South. 318; Kimbrell v. Rogers, 90 Ala. 339, 7 South. 241; Hillens v. Brinsfield, 113 Ala. 304, 21 South. 208. In the case of Lillich v. Moore, 112 Ala. 532, 20 South. 452, this court, speaking through McClellan, J., said: “We know of no exception to the rule that, when errors injurious to some of the appellants only are assigned by them all jointly, they are not available to work a reversal, and will not be considered by the court.”

In the opinion of the writer the case of Gilley v. Denman, 185 Ala. 651, 64 South. 97, is in conflict with the foregoing authorities, as well as many other Alabama cases, and it ought to be overruled. The majority, however, are of the opinion, and so hold, that the case at bar and the Gilley Case, supra, can be differentiated from the other cases, and think that all of the defendants, save Adams, can be disregarded, and the assignment of error should be treated as that of Adams alone, as there was no judgment for or against the other defendants, and that the assignment of errors should be considered, although there was a joint appeal and judgment only against Adams.

(3) The finding and conclusion of the trial court, who tried this case without a jury, is not so presented as to authorize this court to revise the same, as there was no objection and exception to the finding, as required by the practice act of the city court.

(4) The only ground' of .objection to the question to Bibby covered by the first assignment of error is that *656it calls for the conclusion of the witness. The court does not think it objectionable upon this ground; but, if a small portion of same.could be so construed, then the appellant should have objected only to that part of it, as the question was susceptible of an intelligent separation.

(5) The limitation by the court as to the subscription list made the basis of the second assignment of error will not be reviewed, as the record discloses no exception to the ruling of the court.

The judgment of the city court is affirmed.

Affirmed.

All the Justices concur, except Anderson, C. J., who dissents in part.