Alabama Power Co. v. Fergusen, 6 Div. 71

CourtSupreme Court of Alabama
Writing for the CourtBROWN, J.
Citation87 So. 796,205 Ala. 204
Decision Date02 December 1920
Docket Number6 Div. 71
PartiesALABAMA POWER CO. v. FERGUSEN.

87 So. 796

205 Ala. 204

ALABAMA POWER CO.
v.
FERGUSEN.

6 Div. 71

Supreme Court of Alabama

December 2, 1920


Rehearing Denied Jan. 13, 1921

Appeal from Circuit Court, Walker County; C.P. Almon, Judge.

Action by Frank Fergusen against the Alabama Power Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

A.F. Fite and John H. Bankhead, Jr., both of Jasper, for appellant.

Leith, Gray, & Powell, of Jasper, for appellee.

BROWN, J.

The complaint as originally filed consisted of counts 1, 2, and 3, and was subsequently amended by adding counts 4 and 5. After the trial was entered upon the complaint was again amended by withdrawing counts, 1, 2, and 3, and the case was submitted to the jury on counts 4 and 5.

The paper incorporated in the record as a demurrer to the several counts of the complaint, immediately following the original complaint, is not addressed to the complaint as amended, and does not appear to [87 So. 797.] have been filed to the original complaint or to the complaint as amended. The only ruling on demurrer to the complaint is shown in the minute entry as follows:

"Thereupon the defendant files demurrer to the complaint as amended. Said demurrer is considered by the court, it is the opinion of the court that the same is not well taken, and it is therefore the order and judgment of the court that the same be overruled."

The demurrer, if such there was, to the complaint as amended is not incorporated in the record, and, construing the minute entry in the light of the authorities, it fails to show a ruling of the court on the demurrers to the several counts of the complaint; therefore the assignments of error relating to the ruling of the court on demurrers to counts 4 and 5 of the complaint avail nothing. Berger v. Dempster, 85 So. 392; Ala. Chem. Co. v. Niles, 156 Ala. 298, 47 So. 239; Carland & Co. v. Burks, 197 Ala. 435, 73 So. 10; Cent. of Ga. R.R. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Cent. of Ga. R.R. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325.

Neither the pleas nor demurrer to the pleas appear to have been indorsed "Filed" by the clerk, as required by the statute. Code 1907, §§ 5337, 5736. However, waiving this defect in the record, plea 4 does not in terms aver that it was the plaintiff's duty to look out for the wire, and it is deficient in omitting any averment of fact which imposed on the plaintiff such...

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14 practice notes
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • 12 Octubre 1922
    ...the jury; hence the refusing of special charges requested by defendant in writing will not be reviewed. Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. See Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 83 So. 107; United States, etc., Co. v. Granger, 172 Ala. 546, 55 So. ......
  • Tennessee Coal, Iron & R. Co. v. Hartline, 6 Div. 57.
    • United States
    • Supreme Court of Alabama
    • 28 Enero 1943
    ...subject to review by this court. Liverpool & London & Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. Thus we are brought to a consideration of the overruling of demurrer of the T.C.I. to Count B added by amendment and on which th......
  • Southern Natural Gas Co. v. Davidson, 6 Div. 869.
    • United States
    • Supreme Court of Alabama
    • 10 Marzo 1932
    ...Bank v. Chaffin, 118 Ala. 246, 24 So. 80; Bienville Water Supply Co. v. Mobile, 125 Ala. 178, 27 So. 781; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796; Hackney v. Dudley, 216 Ala. 400, 113 So. 401; Chitwood v. Blackwood, 220 Ala. 75, 124 So. 110; Reynolds v. Massey, 219 Ala. 265,......
  • Cannon v. Scarborough, 3 Div. 962.
    • United States
    • Supreme Court of Alabama
    • 5 Noviembre 1931
    ...St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. [137 So. 901] Some of these cases deal with omission from the bill of exceptions in actions at law and from the record in equity......
  • Request a trial to view additional results
14 cases
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • 12 Octubre 1922
    ...the jury; hence the refusing of special charges requested by defendant in writing will not be reviewed. Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. See Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 83 So. 107; United States, etc., Co. v. Granger, 172 Ala. 546, 55 So. ......
  • Tennessee Coal, Iron & R. Co. v. Hartline, 6 Div. 57.
    • United States
    • Supreme Court of Alabama
    • 28 Enero 1943
    ...subject to review by this court. Liverpool & London & Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. Thus we are brought to a consideration of the overruling of demurrer of the T.C.I. to Count B added by amendment and on which th......
  • Southern Natural Gas Co. v. Davidson, 6 Div. 869.
    • United States
    • Supreme Court of Alabama
    • 10 Marzo 1932
    ...Bank v. Chaffin, 118 Ala. 246, 24 So. 80; Bienville Water Supply Co. v. Mobile, 125 Ala. 178, 27 So. 781; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796; Hackney v. Dudley, 216 Ala. 400, 113 So. 401; Chitwood v. Blackwood, 220 Ala. 75, 124 So. 110; Reynolds v. Massey, 219 Ala. 265,......
  • Cannon v. Scarborough, 3 Div. 962.
    • United States
    • Supreme Court of Alabama
    • 5 Noviembre 1931
    ...St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. [137 So. 901] Some of these cases deal with omission from the bill of exceptions in actions at law and from the record in equity......
  • Request a trial to view additional results

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