132 So. 170 | Ala. | 1930
Upon original consideration of this cause we were impressed with the view that the language of the appeal bond was such as to limit the review to the judgment for costs only. This view, however, overlooked the case of Street v. Street,
The judgment in the case is an entirety, and an effort to appeal from a portion thereof will not be presumed. 3 Corpus Juris, 596.
The case of Street v. Street, supra, is here applicable in principle, and a consideration of the entire record in the light of the foregoing authorities is persuasive to the effect that the appeal is in fact from the judgment adverse to appellants wherein and incident thereto they were taxed with the costs following the finding of the jury for defendants on their plea of tender. We are therefore of the opinion that the appeal presents for review the ruling of the court overruling the demurrer to defendants' plea of tender, and we pass to a consideration of this question.
Two of the counts upon which the case was tried, were in trespass, wherein punitive damages were recoverable (Norton v. Bumpus,
In Wilhite v. Ryan,
With any exception to the rule, as by statute in slander cases, referred to in the opinion, we are not here concerned.
In Ganus Co. v. Tew,
The common law has been modified by statute in several jurisdictions (Am. Dig. Cent. Ed. vol. 45, p. 2809), but it is not pretended there is any applicable statute in this state, and the cause is controlled by the common law.
From the oral charge of the court, it appears there was evidence justifying the imposition of punitive damages.
The above-noted authorities suffice to show the plea of tender was not appropriate to these counts. The appeal is on the record, and without a bill of exceptions. It is insisted, therefore, that, if there was error in the ruling in this respect, it was without injury, as injury is not presumed from error in rulings on the pleading, citing Miller v. Mut. Grocery Co.,
But we do not consider that the rule of error without injury can be consistently extended to the instant case, where the erroneous ruling of the court injected into the trial an improper issue and one upon which the verdict was expressly rested.
We have taken note also of the language of the oral charge as to the elimination of the *280
plea of tender if punitive damages are found justified, but this does not cure the error of injecting the issue of tender into the case. Indeed, without regard to the question of punitive damages, the plea of tender would be unavailing in such actions under the common-law rule. One of the counts is for use and occupation. The sum sought represents an unliquidated claim or demand, and would likewise appear to come within the influence of the same rule, though no case directly in point has come to our notice. The language of Day v. Lafferty,
The conclusion is reached, therefore, that the court committed reversible error in overruling plaintiffs' demurrer to defendants' plea of tender.
For the error so indicated, let the judgement be reversed and the cause remanded.
Reversed and remanded.
All the Justices concur.