Dupuy v. Wright, 60 So. 997

60 So. 997 | Ala. Ct. App. | 1912

PELHAM, J.

The plea in abatement going to the jurisdiction of the court of common pleas should have been verified by affidavit. — Code, 6332. The motion to strike the plea because not filed in time was the proper practice. — Rule of Practice No. 12, Code, p. 1520; Cobb v. Miller, 9 Ala. 499; Hart v. Turk, 15 Ala. 675; Holley v. Younge, 27 Ala. 203. It Avas a matter Avithin the discretion of the court to strike the plea on appellee’s motion. — St. Louis & S. F. R. Co. v. Sutton, 169 Ala. 389, 55 South. 989, Aun. Cas. 1912B, 366; Reed Lumber Co. v. Lewis, 94 Ala. 626, 10 South. 333. The demurrers to the replications are not set out in the transcript and we are unable to review the court’s action on them.

The written charge given at the request of the plaintiff stated a correct proposition of law, and the court cannot he-put in error for giving it. If the defendant thought the charge had a misleading tendency as applied to some of the evidence in the case, it was his duty to request a charge to correct this, and it would seem from reading the charge given at the request of the defendant, numbered by us 2 in the margin of the record, that this was the course pursued.

Counsel for the plaintiff in his closing argument to the jury said: “Gentlemen of the jury, this case is an appeal from the inferior court of Birmingham, now called the Birmingham court of common pleas, and plaintiff obtained a judgment in the lower court for the full amount sued for and we ought to have it here.” The defendant objected to this argument and moved the court to exclude it. The court overruled the objection and refused to instruct the jury to disregard the argument, making the statement, in passing on the objection, that “the transcript from the court below showed that the plaintiff had obtained a judgment, and it was therefore proper argument to the jury, though this case was now being tried de novo.”

Possibly under some circumstances the mere assertion of the bare fact that there had been a judgment rendered for the plaintiff on the former trial might properly have been referred to, but not when calculated to prejudice the jury in its finding in the case on-trial, and not when made for that evident purpose, as the argument objected to in this case shows on its face was the object in view in. making it. The design and ten-clency of tbe argument was evidently to influence, tbe finding of tbe jury, through tbe action of tbe lower court on tbe former trial, in finding for tbe plaintiff. It was an appeal to cajole tbe jury into rendering a verdict for tbe plaintiff because tbe lower court bad made such a finding, and had a natural tendency to directly affect tbe verdict of tbe jury by impressing them with this fact, a fact which they bad no right to consider or weigh in arriving at a conclusion in tbe case on trial.

Tbe remark made by tbe court in passing on tbe objection was calculated rather to further prejudice tbe case in this particular than to relieve tbe argument of its injurious effect and prejudicial tendency.

We are unable to say that tbe defendant’s rights were not materially prejudiced by this improper argument; and it is well settled in this state that, when tbe trial court refuses upon request to instruct tbe jury to disregard such improper argument of counsel, an order of reversal should be entered.

Reversed and remanded.