68 So. 151 | Ala. | 1915
This case was before this court on a former occasion. 10 Ala. App. 273, 4 South. 510. It came here then on an application for certiorari to review the opinion and ruling of the Court of Appeals. — 187 Ala. 511, 65 South. 533. A statement of the general nature of the case, sufficient for our purposes at this time,
On the ground that this appeal is taken upon the record alone, and we have not before us the facts or the evidence upon which the jury rendered their verdict, appellee invokes rule 45 (175 Ala. xxl, 61 South, ix), adopted by this court before the last trial of this cause, insisting that, inasmuch as this court has not been placed in possession of the evidence, it cannot know that errors in matters of pleading, if errors they were, have probably affected injuriously any substantial rights of appellants, there can be no1 reversals, which is to say that, to avoid a reversal on an appeal of this character, this court will assume any possible state of the evidence that would render erroneous rulings harmless. No means has been provided for getting before this court the evidence in a case where the party appealing has reserved no bill of exceptions, or for any reason elects to bring his case to this court upon the record proper of the court below. He is nevertheless entitled to his appeal on the record, without a statement of the evidence. To indulge the presumption insisted upon would be to deny his right of appeal, and this of course the court has no power to do.
Always, in dealing with questions of pleading, it is the rule of this court to consider questions of merit
We are all clear to the conclusion that there is no merit in the objections taken by the demurrer to appellee’s several pleas. Beally, this was determined on the former appeal.' The criticisms of the pleas now suggested are narrowly verbal and against the most obvious intention of these pleadings, they are refuted by the language employed in the body of the pleas or in the contract exhibited therewith, or they rest upon the gratuitous assumption of independent facts, without the basis of suggestion in the pleadings such as we have no right to indulge in order to find the pleas insufficient.
Affirmed.