133 So.2d 697 (Ala.App. 1961), 6 Div. 797, Gober v. City of Birmingham

Docket Nº6 Div. 797.
Citation133 So.2d 697, 41 Ala.App. 313
Opinion JudgeHARWOOD, Presiding Judge.
Party NameJames GOBER v. CITY OF BIRMINGHAM.
AttorneyArthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., Oscar W. Adams, Jr., and J. Richmond Pearson, Birmingham, for appellant. Watts E. Davis and Wm. C. Walker, Birmingham, for appellee.
Case DateMay 30, 1961
CourtAlabama Court of Appeals

Page 697

133 So.2d 697 (Ala.App. 1961)

41 Ala.App. 313

James GOBER

v.

CITY OF BIRMINGHAM.

6 Div. 797.

Court of Appeals of Alabama.

May 30, 1961

Rehearing Denied June 20, 1961.

Page 698

[41 Ala.App. 315] Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., Oscar W. Adams, Jr., and J. Richmond Pearson, Birmingham, for appellant.

Watts E. Davis and Wm. C. Walker, Birmingham, for appellee.

HARWOOD, Presiding Judge.

This appellant was first convicted in the Recorder's Court of the City of Birmingham for violating Section 1436 of the City Code of Birmingham, Alabama, 1944

Page 699

Section 1436, supra, is as follows:

'Sec. 1436. After Warning. Any person who enters into the dwelling house, or goes or remains on the premises of another, after being warned not to do so, shall, on conviction, be punished as provided in Section 4, provided, that this Section shall not apply to police officers in the discharge of official duties.'

On his conviction in the Recorder's Court, the appellant perfected an appeal to the Circuit Court of Jefferson County, where he was again adjudged guilty, and punishment was imposed.

The complaint filed in the Circuit Court reads:

'Comes the City of Birmingham, Alabama, a municipal corporation, and complains that James Gober, within twelve months before the beginning of this prosecution and within the City of Birmingham or the police jurisdiction thereof, did go or remain on the premises of another, said premises being the area used for eating, drinking, and dining purposes and located within the building commonly and customarily known as Pizitz Department Store, located at 1821 2nd Avenue, North, Birmingham, Alabama, after being warned not to do so, contrary to and in violation of Section 1436 of the General City Code of Birmingham of 1944.'

The evidence presented by the city in the trial below tends to show that this appellant, together with one James Davis, went to the cafeteria or lunch room in the Pizitz store and seated themselves at a table. According to the appellant, they could not obtain service from the waitresses.

Shortly, Dick Pizitz, assistant to the President of Pizitz, arrived and asked the appellant and Davis to leave, and told them they could be served downstairs. The appellant and Davis refused to leave. Either the appellant or Davis, upon refusing to leave, suggested that the police be called.

In response to instructions from a superior officer, a police officer of the City of Birmingham went to the restaurant. He found the appellant and Davis still seated at a table, and placed both under arrest.

This being an appeal from a conviction for violating a city ordinance, it is quasi criminal in nature, and subject to rules governing civil appeals. Accordingly we will limit our review to errors assigned and argued in appellant's brief. Fiorella v. City of Birmingham, 35 Ala.App. 384, 48 So.2d 761; certiorari denied 254 Ala. 515, 48 So.2d 768; certiorari denied 340 U.S. 942, 71 S.Ct. 506, 95 L.Ed. 680; Ellis v. City of Sylacauga, 36 Ala.App. 687, 63 [41 Ala.App. 316] So.2d 33; Parks v. City of Montgomery, 38 Ala.App. 681, 92 So.2d 683.

In the proceedings below the appellant filed a motion to strike the complaint, which motion was overruled. This ruling is asserted as error in Assignment of Error No. 1.

A motion to strike is not the proper method of testing the sufficiency of a complaint. Taylor v. City of Birmingham, 35 Ala.App. 133, 45 So.2d 53; Byrum v. Pharo, 240 Ala. 564, 200 So. 622. Assignment of Error No. 1 is therefore without merit.

Appellant's Assignment of Error No. 2 avers that the court erred in overruling his demurrer to the complaint.

Ground 1 of the demurrer asserts that the complaint does not charge the defendant with any offense under the laws or Constitution of the State of Alabama; Ground 2, that the complaint is insufficient to support a prosecution in that no offense is charged cognizable by the court; Ground 3, that the complaint is so vague and uncertain as to not apprise the defendant of what he is called upon to defend.

Page 700

Pretermitting other possible defects, it is clear that all of the grounds are general in nature, and in no wise point out any specific defect in the complaint.

For this reason alone the lower court was justified in refusing to examine the complaint for defects therein, and could properly overrule the demurrer, Oliveri v. State, 13 Ala.App. 348, 69 So. 359, and a trial court will not be put in error for overruling a demurrer based on general grounds which are not sufficiently specific to point out an alleged defect in the pleading. Cabiness v. City of Tuscaloosa, 39 Ala.App. 538, 104 So.2d 778; Sarber v. Hollon, 265 Ala. 323, 91 So.2d 229.

In brief counsel for appellant argues that the complaint if insufficient in not setting forth by whom the appellant was warned to leave the premises.

No ground of the demurrer raised this point in the court below. Even if the complaint be defective in this regard, a premise we do not accept, the defect was amendable. Sec. 238, Tit. 7, Code of Alabama 1940, provides:

'Either before or after judgment on demurrer, the court must permit an amendment of the pleadings; * * *'.

This section is broad and comprehends all pleadings except indictments, and authorizes amendment of complaints in prosecutions for violation of city ordinances, as though it were a complaint in a civil action. Thomas v. State, 58 Ala. 365.

The alleged defect not having been in any wise raised in the court below, and not pointed out by demurrer, is not available on appeal, and will not be considered. McElhaney v. Singleton, 270 Ala. 162, 117 So.2d 375; Campbell v. Jackson, 257 Ala. 618, ...

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20 practice notes
  • 367 S.W.2d 750 (Ark. 1963), 4992, Briggs v. State
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 13, 1963
    ...81 S.Ct. 856, 6 L.Ed.2d 45; Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 293 F.2d 835; Gober v. City of Birmingham, 272 Ala. 704, 133 So.2d 697. [2] The cases were consolidated for briefing upon motion of appellants. [3] It is noted that these appellants were charged and convicted o......
  • 160 So.2d 898 (Ala.App. 1963), 6 Div. 930, Phifer v. City of Birmingham
    • United States
    • Alabama Alabama Court of Appeals
    • November 5, 1963
    ...41 Ala.App. 181, 130 So.2d 231. The first three grounds of demurrer are the same as those pointed out in Gober v. City of Birmingham, 41 Ala.App. 313, 133 So.2d 697, as being general in nature and properly overruled. The remaining grounds of demurrer are as follows: '4. That Sections 1142 a......
  • 131 So.2d 428 (Ala.App. 1961), 4 Div. 431, Turner v. State
    • United States
    • Alabama Alabama Court of Appeals
    • May 30, 1961
    ...treated 'rude' and 'rough' as synonymous. See also Reeves v. State, 96 Ala. 33, 11 So. 296, 299 ('rude or indecent behavior': 'uncivil[41 Ala.App. 313] * * * offensive to modesty or delicacy'). Also, charge 10 is incomplete in that it mentions 'assault' whereas taking 'indecent liberties wi......
  • 301 So.2d 235 (Ala.Crim.App. 1974), 8 Div. 478, Jones v. City of Decatur
    • United States
    • Alabama Alabama Court of Criminal Appeals
    • October 1, 1974
    ...to rules governing civil appeals and review is limited to errors assigned and argued in appellant's brief. Gober v. City of Birmingham, 41 Ala.App. 313, 133 So.2d 697; Woods v. City of Tuscaloosa, 43 Ala.App. 626, 198 So.2d 306. Where arguments offered in support of assignments of error are......
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20 cases
  • 367 S.W.2d 750 (Ark. 1963), 4992, Briggs v. State
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 13, 1963
    ...81 S.Ct. 856, 6 L.Ed.2d 45; Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 293 F.2d 835; Gober v. City of Birmingham, 272 Ala. 704, 133 So.2d 697. [2] The cases were consolidated for briefing upon motion of appellants. [3] It is noted that these appellants were charged and convicted o......
  • 160 So.2d 898 (Ala.App. 1963), 6 Div. 930, Phifer v. City of Birmingham
    • United States
    • Alabama Alabama Court of Appeals
    • November 5, 1963
    ...41 Ala.App. 181, 130 So.2d 231. The first three grounds of demurrer are the same as those pointed out in Gober v. City of Birmingham, 41 Ala.App. 313, 133 So.2d 697, as being general in nature and properly overruled. The remaining grounds of demurrer are as follows: '4. That Sections 1142 a......
  • 131 So.2d 428 (Ala.App. 1961), 4 Div. 431, Turner v. State
    • United States
    • Alabama Alabama Court of Appeals
    • May 30, 1961
    ...treated 'rude' and 'rough' as synonymous. See also Reeves v. State, 96 Ala. 33, 11 So. 296, 299 ('rude or indecent behavior': 'uncivil[41 Ala.App. 313] * * * offensive to modesty or delicacy'). Also, charge 10 is incomplete in that it mentions 'assault' whereas taking 'indecent liberties wi......
  • 301 So.2d 235 (Ala.Crim.App. 1974), 8 Div. 478, Jones v. City of Decatur
    • United States
    • Alabama Alabama Court of Criminal Appeals
    • October 1, 1974
    ...to rules governing civil appeals and review is limited to errors assigned and argued in appellant's brief. Gober v. City of Birmingham, 41 Ala.App. 313, 133 So.2d 697; Woods v. City of Tuscaloosa, 43 Ala.App. 626, 198 So.2d 306. Where arguments offered in support of assignments of error are......
  • Request a trial to view additional results