Sellers v. Dickert

69 So. 604 | Ala. | 1915

ANDERSON, C. J.—

(1) The judgment from which this appeal is taken was rendered May 24, 1914, and the judgment upon the demurrer to amended count 2, which is the subject of the first assignment of error, was rendered May 11, 1912. It seems that, after the ruling complained of, there was a judgment against these appellants and an appeal to this court, which is reported in 185 Ala. 206, 64 South. 40, wherein the judgment was reversed, and the judgment upon which this appeal is based was rendered subsequent to said reversal. The ruling now complained of was made prior to the first appeal, and was revisable upon said first appeal. It appears from the record of said former appeal that the ruling of the trial court upon the demurrer to amended count 2 was not urged or insisted upon. See 185 Ala. 206, 64 South. 42, in the former report of the case.

“The general rule is that on a second or subsequent appeal or writ of error the court will not consider matters assigned as error which arose prior to the first appeal or writ of error, and which might have been raised thereon, but were not, on matters appearing on the original record, which might have been corrected on the first hearing, but were not urged.” — Ala. City G. & A. R. R. Co. v. Bates, 155 Ala. 347, 46 South. 776, and authorities there cited.

We therefore decline to consider the assignment of error relating to the ruling upon the demurrer to amended count 2 of the complaint.

(2) The bill of exceptions was presented to the trial judge August 18, 1914, and was signed by him on the 18th of November, 1914, more than 90 days after the presentation. Section 3019 of the Code of 1907 requires that the bill must be signed by the judge within 90 days after the presentation. The appellees’ motion to strike the bill of exceptions is accordingly sustained, and the judgment of the circuit court is affirmed.

Affirmed.

McClellan, Sayre, and Gardner, JJ., concur.