154 So. 116 | Ala. Ct. App. | 1933
Lead Opinion
Parties have a right to frame the issues as suits them both.
In this case, as the issues were framed, as we understand them, they were properly submitted to the jury, whose verdict is amply supported.
The bill of exceptions does not purport to set out all the evidence; hence we assume such a condition of same as to justify each ruling, none of same being inherently and incurably erroneous, to which exception was reserved.
For the same reason we will not review the giving or refusing of written charges.
No prejudicial error having been pointed out, etc., to us, the judgment is affirmed.
Affirmed.
SAMFORD, J., not sitting.
Addendum
Shepard's Alabama Citations, upon which we have been accustomed to rely, does not show that the ruling embodied in the quoted headnote has ever been criticized, modified, or overruled by the Supreme Court. On the contrary, it has been cited approvingly a number of times — twice, at least, by the distinguished justice (who was then a judge of this court) who wrote the opinion on petition for writ of certiorari in this case. We give these instances:
In the opinion written for this court in the case of Roden v. State,
And, in the opinion in the case of Dickey v. State,
We confess we did apply the "doctrine" referred to in the opinion by the Supreme Court on certiorari in this case (
So we proceed to consider the case further.
We take it that we are yet, under the holding last announced by the Supreme Court, excused from a consideration of the written charges given and refused, etc., and from passing upon any exceptions to the court's oral charge; hence we consider none of same, though perhaps we ought to say that in no such instance does it appear that any error of an inherent or incurable nature was committed, if any error at all.
This disposes of appellant's assignments of error 3, 4, and 6.
The demurrers interposed to the complaint were properly overruled. But, if not, the assignment of error taking the point, or undertaking to, is not argued here sufficiently to require our notice. This disposes of assignment of error No. 1.
Appellant's second assignment of error is that "the court committed error in overruling appellant's demurrers to appellee's replications
The judgment entry, however, shows no such ruling. Hence this assignment avails nothing.
Assignment of error No. 7 is not argued; hence waived. Warner v. Warner,
The motion for a new trial was properly overruled, considered upon only the testimony appearing in the bill of exceptions, to say nothing of what might be the case if the said bill contained all the testimony.
So far as we can see, from anything pointed out to us by appellant, upon whom the duty rests to designate such, no prejudicial error was committed — that is, committed against appellant — in the court below.
Hence the judgment is affirmed.
Affirmed. *78