139 Ala. 462 | Ala. | 1903
It is not shown by the bill of exceptions that there was any objection made or exception taken to the allowance of any amendment to the complaint; and, therefore, the orders allowing amendments are not reviewable. To show' such objection and exception is not the office of the record proper. — Mock v. Walker, 42 Ala. 668 ; Simmons v. Varnum, 36 Ala. 92; Jarman v. McMahan’s Admr., 37 Ala. 431.
If it be conceded that there was such proof of a plea to the first and second counts of the complaint as dis-entitled the plaintiff to recover thereon, yet, the jury could not properly have been required to find specially for the defendants on any particular count, nor was the jury, if the defendants were liable under any count, bound to consider whether they were liable under any other.- — Dorsey v. State, 134 Ala. 553; L. & N. R R. Co. v. Sandlin, 125 Ala. 585. The contrary might have been understood from refused charges 1, 2 and 3, respectively, and for this reason, if for no other, they were properly refused. The evidence on which depended the right to recover was in conflict, and was such as to justify the refusal of charge 4.
Affirmed.