72 So. 542 | Ala. | 1916
Lead Opinion
ON MOTION TO ESTABLISH BILL OF EXCEPTIONS.
It is insisted that the phrase quoted above, “or if for other good cause,” suffices to include a case of this character where the presiding judge was absent from the country. We concur in this view, and therefore conclude that the application should be granted. The bill of exceptions is accordingly established.
Opinion on the Merits
ON THE MERITS.
While, under the conclusion we have reached as to the sufficiency of the assignment of demurrer, it is unnecessary to determine as to the sufficiency of the complaint in this respect, yet it is not improper to state (lest we be misunderstood) that we by no means intend to indicate an opinion that the complaint was insufficient in this particular. Rather the contrary view prevails. However, we conclude that the above-quoted assignment of demurrer, in consideration of the language used in the complaint, is too general to be considered as pointing out any defect of the character here insisted upon. Our statute (section 5340, Code 1907) provides that: “No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer.”
We are of the opinion that the above-quoted assignment of demurrer does not meet the requirements of our statute, and that reversible error could not therefore, in any event, be predicated upon the action of the court in overruling the demurrer to the complaint.
The rule as stated in the above-cited authorities is well recognized ; and it seems to be conceded by counsel for appellee that the refusal of the affirmative charge on counts 3 and 8 was error, but he insists that it was without injury and should not work a
For the error indicated in the refusal of the affirmative charge as to the two counts in question, the judgment is reversed.
Beversed and remanded.