120 Ala. 412 | Ala. | 1898
Witz, Biedler & Co. instituted this action, December 13, 1892, by attachment against-S. J. McKissack alone ; the affidavit setting forth a debt due from him by account to the plaintiff, and affirming that he had fraudulently disposed of his property. The bond and writ followed the affidavit: the bond was conditioned to pay damages etc. to him alone, and the writ was directed only against his estate. On March 25, 1893, the following memorandum or entry was made by the judge or court: “The plaintiff has leave to amend, attachment, bond and writ, which is done in red ink.”
The complaint filed in the cause follows the affidavit and writ as amended, and is against “S. J. McKissack and R. L. McKissack doing business under the name of S. J. McKissack,” and claims of them in the plural as “defendants;” and.thus the case stood to the end. The court having stricken a plea filed by R. L. McKissack denying the existence of a partnership, the trial was had on the general issue. Of course the burden was on the plaintiff to prove his alleged debt. It may be admitted that this was done as against S. J. McKissack, and that plaintiff was, therefore, entitled to verdict and judgment against him. There was, however, no evidence that R. L.-McKissack ever owed this debt or any part of it to the plaintiff. His liability was rested by the trial court on the theory that he was a partner of S. J. McKissack at the time and in the business in which the debt was contracted. And this conclusion of the existence of such partnership was arrived at. by assuming that the fact could not be putin issue by R. L. McKissack under
All other assignments of error are made jointly by the appellants. On the evidence in the bill of exceptions— and we will not presume there was other evidence far the purpose of putting the lower court in error — plaintiff was entitled to the affirmative charge against S. J. McKissack. On this state of case, the rulings assigned would not be of injury to him, and though they be erroneous, would not avail to reverse the judgment at his instance. On the principle stated above, we cannot reverse those rulings, assigned as they are jointly by both appellants and lacking in prejudice to one of them.
Moreover, for the most part these rulings could not be reviewed on this record if separately assigned, for that they either should be shown by the bill of exceptions, and, in fact, appear only by the record proper, or belonging to the record proper, they ai’e attempted to be shown here only by copying into the transcript the bench notes made by the judge on the trial docket, and do not appear in any formal judgment of the court.
Reversed and remanded.