Alosi v. Birmingham Water Works Co.

| Ala. Ct. App. | Jun 1, 1911

WALKER, P. J.

The first count of the complaint, the one filed on the institution of the suit in the inferior court, claimed “of the defendant $23.90 due by account made by defendant on December, 1905, and January, 1906, and payable with interest.” By the second count of the complaint, which was added in the circuit court by amendment, the plaintiff claimed of the defendant an amount alleged to be due from him under a written contract or application signed by him, by the terms whereof defendant requested plaintiff to supply him with water, at meter rates, and agreed to pay plaintiff by the 10th of each month for the amount of water registered by his meter for the previous month; and this count stated the amount due from defendant at meter rates for the water registered by his meter for the months of December, 1905, and January, 1906, and that defendant had failed and refused to pay the same.

We do not discover merit in any of the grounds of the demurrer to the complaint, which was addressed “to the complaint and to count 2 thereof,” and not to each count separately and severally; but, as the assignments of error based upon the overruling of the demurrer are not supported by argument or citation of authorities in the-brief of the counsel for the appellant, and, the complaint stating a cause of action, that ruling of the trial court need not be reviewed.-Montgomerg Street Railway Co. v. Hastings, 138 Ala. 432" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/montgomery-street-railway-co-v-hastings-6520130?utm_source=webapp" opinion_id="6520130">138 Ala. 432, 445,35 Couth. 412.

There was no error in sustaining the demurrer to defendant’s third plea. That plea in averring merely that defendant signed the instrument sued on without reading it or being informed of its contents, and failing to allege that he was induced thereto by any false representations, did not disclose any ground for relieving the defendant of the obligation so assumed by him.— Martin v. Smith, 116 Ala. 639" court="Ala." date_filed="1897-11-15" href="https://app.midpage.ai/document/martin-v-smith-6517375?utm_source=webapp" opinion_id="6517375">116 Ala. 639, 22 South. 917; 9 Cyc. 389, 390.

The case was tried by the court below sitting without a jury. The bill of exceptions -does not disclose that any conclusion was reached by the trial judge or judgment entered by the circuit court on the evidence. Under the provisions of section 7 of the act to regulate the practice and proceedings of the circuit court of Jefferson county, approved February 28, 1889 (Acts 1888-89, pp. 797, 800), the conclusions and judgment of the trial court on the evidence in a case tried without a jury are not subject to review here, unless they are presented for review on appeal by a bill of exceptions.—Williams, Adm'r, v. Woodward Iron Co., 106 Ala. 254" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/williams-v-woodward-iron-co-6516028?utm_source=webapp" opinion_id="6516028">106 Ala. 254, 17 South. 517. There is a similar requirement in the present general statute (Code 1907, § 5361) governing the review on appeal of the conclusions and judgments of the trial court in cases tried without a jury. The conclusion or finding of the trial court on the evidence not being presented for review on appeal in the manner required by law, such conclusion or finding is not subject to re-examination by this court. The provision of the general statute dispensing with the necessity of an exception to the finding of the trial court in order to present it for review does not affect the other requirement of the statute in reference to presenting, by bill of exceptions, the conclusions and judgments on the evidence which are sought to be reviewed.

Affirmed.