Alabama Chemical Co. v. Niles, 47 So. 239

Alabama Chemical Co. v. Niles

47 So. 239 | Ala. | 1908

ANDERSON, J.

The only recital to be found in the judgment entry in reference to a ruling on a demurrer to the complaint is as follows: “And the defendant’s demurrer to the complaint being argued by counsel and understood by the court, it is considered and ordered by the court that the said demurrer to the complaint be and the same is hereby overruled.” This entry clearly refers to- a single demurrer to the complaint in its entirety, and not to separate and distinct demurrers to separate and distinct counts of the complaint. We find *303no such demurrer as is treated in the judgment entry in the record. When the record recites the overruling of a demurrer, hut which said demurrer does not appear in the record, we cannot review the action of the court in overruling same. — Jones v. Ala. Min. R. R. Co., 107 Ala. 400, 18 South. 30; Holley v. Coffee, 123 Ala. 411, 26 South. 239; Cooley v. U. S. Savings Co., 144 Ala. 541, 39 South 515. The record discloses a number of demurrers to separate and distinct counts of the complaint; but the judgment entry shows no action by the court on same, the only ruling being upon a single demurrer purporting to be filed to the complaint in its entirety, and not separately and severally to the different counts. The assignments of error are: “The court erred in overruling the defendant’s demurrer to the first count of the complaint” — and so on from the first to the tenth count,, inclusive. Yet the judgment entry discloses no such rulings as the ones complained of in the assignments of error, above noted. It may be that no such demurrer was interposed as is passed upon in the judgment entry, and that the court intended to rule upon the demurrers presented by the record; but we cannot read the judgment entry contrary to its plain and clear recital in order to put the trial court in error as to demurrers which do not appear to have been considered. We therefore have no ruling on demurrers to the complaint properly presented for review. -

The trial court did not commit reversible error in sustaining the demurrers to the defendant’s special pleas 2, 3, 4, 5, and 7. They seem to traverse or deny in part the material allegations of the complaint, by charging the defendant with having abandoned his place of duty and denying that he was engaged in the performance of any duty at the time he was injured, and in addition thereto attempt to set up contributory negligence. *304Should they be treated as traversing the complaint, and good as such, which we do not decide, the defendant got the benefit of same under the general issue. On the other hand, they were not sufficient as pleas of contributory negligence, for failing to set up the facts and details constituting negligence. While a complaint can aver negligence generally, this rule does not obtain as to a plea, and one setting up contributory negligence is not sufficient, unless it aver the facts constituting the contributory.negligence. 4 Mayfield’s Dig. p. 311, and cases cited in section 278.

The judgment of the city court is affirmed.

Affirmed.

Tyson, O. J., and Simpson and Denson, JJ., concur.