Long v. Holley

47 So. 655 | Ala. | 1908

McCLELLAN, J.

— The appeal is assumed to be from a non-suit suffered because of-adverse rulings by the court upon pleadings in the cause. There is no bill of exceptions. The appellee moves the dismissal of the appeal, and for the reasons to be stated the motion is granted.

The judgment entry, entire, is as follows: “Defendant has leave to withdraw pleas No. 3 and No. 4, and to file plea A, which is done. Demurrer to replication is sustained. Plaintiff has leave to strike from complaint allegation of waiver of exemptions as to personal property, which is done. Plaintiff has leave to amend by adding common counts in assumpsit, which is done. Plaintiff takes a non-suit. Came the parties by their attorneys, and the plaintiff makes known to the court that he will not further prosecute this cause and that he will take a non-suit. It is thereupon considered, ordered, and adjudged by the court that the defendants recover of the plaintiff the costs in this behalf expended, for which let execution issue. It is further ordered by the court that the plaintiff has 60 days in which to prepare and present bill of exceptions.”

The only source of right-to appeal from a judgment of non-suit, voluntarily taken, is found in Code 1896, § 614, as amended by act approved February 2,1903 (Acts 1908, p. 34. In order to avail of this right of appeal, a condition precedent thereto is that the non-suit taken must have been necessitated by adverse rulings of the court, either on matters pertaining to the pleadings in the cause or on matters properly presentably by hill of exceptions. Obviously, when compared with previously existing statutes, or read alone, the amendment made by the act of 1903 wrought no change in the right of appeal in this particular. That the defined necessity intervened to induce the non-suit must he shown, that the right to appeal may appear is clear. —Tate v. McCrary, 21 Ala. 499; Downs v. Minchew, 30 Ala. 86. In this judgment entry the only suggestion of adverse action to the plaintiff is that “demurrer to replication is sustained.” Such a recital does not import a judgment upon the demurrer to the replication. —McDonald v. Ala. Mid. R. R. 123 Ala. 227, 26 South. 165, and cases therein noted.

But,-aside from that imperfection, and assuming that an adverse ruling to the plaintiff on the demurrer mentioned was made by the court, it appears from the entry that subsequently, in sequence, to the ruling on said demurrer, plaintiff sought and secured leave to make several amendments to his complaint. After this it is recited that he “takes (took) a non-suit,” and that he formally informed the court “that he will not further prosecute this cause and that he will take a non-suit.” Waiving any other considerations in the premises, we are forced to conclude that by no possible construction of the entry can it be said that the non-suit suffered was in consequence of adverse rulings of the court. The entry does not so assert, either directly or inferentially. For aught that appears therefrom, the non-suit was the result of circumstances wholly independent of the court.

This court had occation, in Tate v. McCrary, 21 Ala. 499, to treat in substance this statute and to determine the sufficiency of the judgment entry in respect of recital of the necessity to take the non-suit. There the entry was, “This day came the parties by their attorneys, and the plaintiffs voluntarily suffer a nou-suit ” By the bill it was shown that a deed offered by plaintiff was excluded, on objection, by the court, exception was reserved thereto, bill of exceptions was tendered and signed, “and the plaintiffs then took a non-suit.” Ruling on this status, the court said: “Neither the bill of exceptions, not the judgment entry, nor*, indeed, any part of the record, informs us that the non-suit was taken on account of the decision of the court.” The writ of error was therefore, and for that reason, dismissed. We interpret Downs v. Minchew, 30 Ala. 86, to be in accord with Tate v. McCrary, supra, though the court found from the bill and entry that the cause for taking the non-suit there was the ruling of the court.

As said, the record in hand is silent as to the cause of the non-suit, and we, of course, cannot supply the deficiency. It follows that the appeal is dismissed.

Appeal dismissed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.