Anthony v. Seed

40 So. 57 | Ala. | 1906

TYSON, J.

This appeal is by three defendants jointly, and the assignments of error are joint. “It is a settled rule that assignments of error made jointly by the appellants are not available, unless the error is injurious to all.” — Bowling v. M. & M. Ry. Co., 128 Ala. 550, 554, 52 L. R. A. 395, 86 Am. St. Rep. 134, and cases there cited; Wilson v. Alston, 122 Ala. 630, 25 South. 225; Beachman v. Aurora Silver Plate Mfg. Co., 110 Ala. 555, 18 South. 314; Killian v. Cox, 132 Ala. 664, 32 South. 738; Woodruff v. Smith, 132 Ala. 81, 31 South. 491.

The second and third assignments of error are based upon exceptions taken to the rulings of the court in sustaining certain questions, which, if answered, could not have benefited the defendant (appellant here) Tom Anthony, since they had no- reference to the title to- the parcel of land in controversy claimed by him in which his coappellants claimed no interest. The ruling, therefore, was clearly innocuous as to him; and, indeed, upon the same consideration, the two other appellants cannot jointly complain of the rulings, however much they may have been prejudiced separately thereby. They have not a joint or common interest in the subject-matter to which both the questions relate. They should, therefore, in order to have these assignments reviewed, have obtained leave to sever in their assignments of error and assigned errors separately and not jointly.

Charge A, given at the request of the plaintiff, was not abstract, and asserted a correct proposition of law when applied to the testimony in the case. It is clearly not subject to the criticism indulged in of it by appellant’s counsel, and the cases cited in support of them have no -application. This also disposes -of tire contention made against the correctness of charge II.

The only criticism that can be successfully indulged against charge B is that it is misleading in failing to state the limitation as to time within which a donor may revoke a verbal gift of land. It is clearly otherwise unobjectionable under our decisions. — Collins v. Johnson, 57 Ala. 304; Boykin v. Smith, 65 Ala. 294, 300; Potts v. Coleman, 67 Ala. 221, 227; Vandiver v. Stickney, 75 Ala. 225, 227; Gafford v. Strauss, 89 Ala. 283, 7 South. 248, 7 L. R. A. 568, 18 Am. St. Rep. 111; Lee v. Thompson, 99 Ala. 95, 97, 11 South. 672. For this, infirmity it cannot be affirmed that the court erred in giving it. If the defendants conceived that they would be prejudiced by it, they should have requested an explanatory charge. —A. G. R. R. Co. v. Burgess, 119 Ala. 555, 25 South. 251, 72 Am. St. Rep. 943; 2 Mayfield’s Dig. p. 573, § 214.

Charged C, as is urged, does not assume that any of the defendants held as a tenant but correctly states an abstract principle of law.

It was of no consequence that these charges were written on a piece of paper upon which was printed, “A. S. Yande Graff, attorney at law, Tuscaloosa, Alabama,” and that Mr. Yande Graff was one of the attorneys representing the plaintiff. The fact that he was representing the plaintiff was, of course, known to the jury, and it is not perceivable how the fact that the charges were written upon his letter heads could have had any possible influence upon the verdict- of the jury. Furthermore, it does not affirmatively appear that they were so written was called to the attention of the court and that a ruling was invoked upon an objection to them on that ground.

Affirmed.

Weakrey, C. J., and Simpson and Anderson, JJ., concur.