Bessemer Liquor Co. v. Tillman

• Decision Date: 03 February 1904
• Citation: 36 So. 40,139 Ala. 462
• Parties: BESSEMER LIQUOR CO. v. TILLMAN.
• Court: Alabama Supreme Court

36 So. 40

139 Ala. 462

BESSEMER LIQUOR CO. v. TILLMAN.

Supreme Court of Alabama

February 3, 1904

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action by Benah H. Tillman against the Bessemer Liquor Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint contained three counts. As originally styled, the suit was by the plaintiff against "The Bessemer Liquor Company, a partnership composed of J. Marks and others." The plaintiff, by leave of the court, amended the caption of the complaint by striking out the words which followed "The Bessemer Liquor Company," and inserting, in lieu thereof, "a corporation." It is shown by the record entry that the defendant objected to the filing and allowance of this amendment, upon the ground that it was an entire change of parties; and the defendant moved to strike the amendment from the file upon the same ground. The judgment entry recites that the amendment was made over the objection of the defendant, and that the motion of the defendant to strike the amendment was overruled. Neither the ruling of the court upon the amendment nor motion, or any exception to such ruling, is shown in the bill of exceptions.

Under the opinion on the present appeal, it is unnecessary to set out the facts of the case in detail. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The court instructs the jury that if they believe the evidence in this case they must find for the defendant on the first count of the complaint. (2) The court charges the jury that if they believe the evidence in this case they must find for the defendant on the second count of the complaint. (3) The court instructs the jury that if they believe the evidence in this case they must find for the defendant on the third count of the complaint. (4) The court instructs the jury that if they believe the evidence in this case they must find for the defendant."

Trotter & Odell, for appellant.

Porter & Perry, for appellee.

SHARPE J.

It is not shown by the bill of exceptions that there was any objection made or exception taken to the allowance of any amendment to the complaint, and therefore the orders allowing amendments are not reviewable. To show such objection and exception is not the office of the record proper....