166 So. 727 | Ala. Ct. App. | 1936
This appeal is on the record proper, without bill of exceptions. Only some questions arising out of rulings on demurrers to pleadings are presented for our consideration.
Count 2 of plaintiff's (appellee's) complaint is, in pertinent part, in this language: "Plaintiff claims of the defendant the sum of $3,000.00, as damages, for that heretofore and during the 12 months period next preceding the filing of this suit while the plaintiff was in possession of and residing on premises known as 804 Bush Avenue in Tarrant, Jefferson County, Alabama, and was the owner of said premises, and while the defendant was engaged in blasting operations nearby said premises, the defendant did negligently conduct itself in and about said blasting operations in such a way that as a proximate consequence of said negligence of the defendant the plaintiff's said house has been shaken, etc.
Appellant argues very vigorously here that the trial court committed reversible error in overruling its demurrers to this count 2 of plaintiff's (appellee's) complaint.
Of course it is the law that a count in a complaint which alleges more than one distinct cause of action is subject to demurrer. Sloss-Sheffield Steel Iron Co. v. Mitchell,
But we think the action of the court in overruling appellant's demurrers to count 2 of the complaint may be sustained on either of two grounds, viz.: (1) The said count was sufficient as against the demurrers, on the authority of what was said by our Supreme Court in the opinion in the case of Lehigh Portland Cement Co. v. Donaldson,
Or (2) if we are in error as to our just state of conclusion, above, it is apparent that the same evidence that was admissible under this count 2 was admissible under count No. 1, of the complaint, to which no objection is here urged. Hence appellant could not have been injured by the action of the court under discussion. And therefore no reversal of the judgment because of this action would, in any event, be ordered. Supreme Court rule 45; Globe Rutgers Fire Ins. Co. v. Home Investment Loan Corporation,
As for the action of the court below in sustaining appellee's demurrers to appellant's pleas 8, 9, 10, and 11, it would seem that it is only incumbent upon us to cite the opinion in the case of Stouts Mountain Coal Coke Co. v. Ballard,
Each of these pleas 8, 9, 10, and 11 were defective in (to mention nothing else) failing to allege that the "use" relied on was "such as to produce a uniform result during the period of adverse claim or holding." *133 The demurrers to each of them were properly sustained.
What we have said hereinabove disposes of all questions arising out of rulings assigned for error and argued here.
We find no prejudicially erroneous ruling to have been made, and the judgment is affirmed.
Affirmed.