100 So. 782 | Ala. Ct. App. | 1924
The appellee moves the court to strike the bill of exceptions on the ground that the same does not comply with circuit court rule 32 (Code 1907, p. 1526). It is pointed out in brief of counsel that the bill of exceptions appearing in the record contains 17 pages of colloquy between the court and attorneys engaged in the trial, interspersed here and there with questions and answers to Cheek, a party defendant and then being examined as a witness. The contention of appellant is, by exceptions taken and motion for new trial, that the attitude and demeanor of the trial judge was such toward the witness Cheek, he being a party to the suit, as to prejudice the jury against the defendant and his codefendants. For this purpose the colloquy between the judge and the attorneys, as well as the questions to and answers of the witness Cheek are all pertinent to questions involved in this appeal. The motion to strike is overruled.
Count A of the complaint states a cause of action in trespass, following No. 23, section 5382, Code of 1907, and is not subject to any of the grounds of demurrer assigned. Miller-Brent Lumber Co. v. Lunday,
The defendants in this case were all joined and sued as joint trespassers, and there is nothing in the complaint, which is in Code form, to indicate that some were sued *34
in trespass and some in an action on the case. Such recovery, therefore, that was had must have proceeded and been based either upon an actual trespass or that such trespass as was committed was aided and abetted by the others. The defendant Cheek is properly suable because he made the indemnifying bond to induce the levy. Lienkauf v. Morris,
It is insisted that James and Carlisle, who were constables and making the levy as such, are entitled to the affirmative charge because of the fact that plaintiff interposed a claim bond under the statute and upon a hearing was awarded the property. Unless the above-named defendants are protected by Code 1907, § 6049, the interposition of a claim bond and a recovery by the claimant of the property on the trial of the right of property would not bar a suit and recovery for a trespass in making the levy. Lenoir's Adm'r v. Wilson,
A sufficient answer to the contention of appellant that the court erred in refusing to give as requested charges 12 and 11 is: The plaintiff is an infant, and, as to such, the doctrine of estoppel because of a failure to declare the truth and assert her rights based thereon at the time of the levy does not apply in this case. 14 R.C.L. p. 232, note 18; Gillespie v. Nabors,
Charge 18 was fully covered by the court in his general charge to the jury.
Charge 6 was properly refused. The title to the property was not necessarily involved. The action of trespass is based on an injury to the possession. Moreover, the charge was abstract. The plaintiff would have been entitled to affirmative instructions that the property was hers if the question had been involved.
There are two charges refused to defendant, not numbered. These charges were properly refused. The rule which authorizes the rejection of the testimony of a witness is stated in Leonard v. State,
Charge 8 is bad for several reasons; a sufficient reason being that there is no evidence of subtenancy.
The judgment appealed from was rendered February 28, 1923, and on May 26, 1923, a bill of exceptions was presented to the trial judge and was by him signed on August 24, 1923. Following this motions were made by each defendant asking that the judgment be set aside and for a new trial. These motions were heard and denied on May 12, 1923, and exceptions reserved. These facts are shown by a separate bill of exceptions presented to the trial judge on August 15, 1923. The motions for new trial were not incorporated in the first bill of exceptions, nor is there exception therein reserved. The appeal in this case is from the original judgment, and the second bill of exceptions, having been presented to the trial judge more than 90 days from the judgment, cannot be considered on this appeal. General Ordnance Co. v. Bowen,
There is no merit in assignment of error No. 14, no exception appearing in the bill of exceptions.
We cannot pass upon the excessive amount of the verdict. As we have seen, no exception on the motion for new trial appears in the first bill of exceptions and no appeal having been taken from the judgment overruling the motions.
There being no error, the judgment must be affirmed.
Affirmed.