Shaw v. White

28 Ala. 637 | Ala. | 1856

RICE, C. J.

In Bryan v. The State, 26 Ala. 65, this court held, that the object of a demurrer to evidence is, not to substitute the judge for the jury as a trier of the facts, but to ascertain the law upon an admitted state of facts; and that its effect, when issue is joined, is to admit every fact which the testimony .establishes, or tends to establish. It was also held, that upon a demurrer to evidence, the court does not stand in the place of a jury, to render such a judgment as the jury ought to have rendered, but to render one against the defendant, if the jury, from the evidence, could legally have done so. — See, also, Carson v. The Bank, 4 Ala. 148; Foster v. McDonald, 5 ib. 376; Alexander v. Fitzpatrick, 4 Porter’s R. 405, and authorities therein cited; Gibson v. Hunter, 2 H. Bl. Rep. 206; Norvell v. Camm, 2 Rand. Rep. 68; Whittington v. Christian, 2 ib. 353; Jones v. Vanzandt, 2 McLean’s R. 596.

Adhering to the law as above laid down, we are satisfied there was no error in the judgment of the court below upon the demurrer to the evidence. No fact or circumstance appears in that-evidence which has any legitimate tendency to prove that the appellant was entitled to recover; but, on the contrary, the evidence shows that she was not entitled to recover.

In such a case, the court is authorized, by section 2349 of the Cod¿, to compel the plaintiff to join in the demurrer to tlie evidence, The precise operation upon that demurrer A was, to take from the jury, and to refer to the judge, the application of the law to the fact; and the defendant had the f right to withdraw from the jury the application of the law to | the fact, by interposing a demurrer to the evidence, — the effect of which was to admit upon the record “ every fact . and every conclusion which the evidence given for the plain*tiff conduced to prove.” The defendant may not have the '¿right, by demurring to evidence which is loose, uncertain, contradictory, or circumstantial, but which, nevertheless, tends to show a right of recovery in the plaintiff, to call upon the court to draw inferences from such evidence, or to determine how far it goes to establish the tight of the plaintiff to recover. — See Whittington v. Christian, supra. Rut, however that may be, it is clear that, where the evidence introduced by ¡She plaintiff does not tend to establish his right to recover, the defendant has the right, by a demurrer to it, to call upon the court to pronounce its legal effect; and the court is authorized to compel a joinder in the demurrer.— Code, §§ 2349, 2350. In such a case, the right of the defendant to demur is as clear as his right to demur to the pleading. Alexander v. Fitzpatrick, supra; Norvell v. Camm, supra; and other authorities supra.

There is no error, and the judgment is affirmed.