41 So. 291 | Ala. | 1906
Bill to enforce the specific perfonnance of a contract to convey lands. From a decree of the chancellor denying the relief prayed for the complainant prosecutes this appeal. In his ansAver to the bill as it Avas last amended the respondent as a defense to the bill incorporated independent special pleas. This he might Avell do under the statute and reap the benefits that might flo-AV from proof of the pleas, the same as if they had been pleaded separate and apart from the ansAver.— Code 1896, § 699; Stein v. McGrath, 128 Ala. 175, 30 South. 792; Mylin v. King, 139 Ala. 319, 35 South. 998; Tyson v. Decatur Land Co., 121 Ala. 414, 26 South. 507.
But it is insisted by the appellant that issue Avas not joined on the pleas, and therefore that the principle established in the cases above cited cannot avail the defendant anything, although the proof may establish the averments made in the pleas. The insistence that issue Avas not joined on the pleas is based solely on the proposition that the pleas are not mentioned in the note of submission. Rule 76 of the chancery court provides that:
The grounds in the assignment of errors which relate to the objections to testimony cannot be considered, as it does not appear from the decree that any ruling was made with respect of objections to evidence. It is true in the chancellor’s opinion he states that objections made ■by the respondent to complainant’s testimony are well made and must be sustained; but this is merely the expression of an opinion, and, not being embodied in the decree, cannot be reviewed.
We find no error prejudicial to the appellant in the record, and the decree appealed from is affirmed.
Affirmed.