Birmingham Finance Co. v. Barber

• Decision Date: 08 April 1924
• Docket Number: 6 Div. 228.
• Citation: 99 So. 736,19 Ala.App. 609
• Parties: BIRMINGHAM FINANCE CO. v. BARBER.
• Court: Alabama Court of Appeals

99 So. 736

19 Ala.App. 609

BIRMINGHAM FINANCE CO. v. BARBER.

6 Div. 228.

Court of Appeals of Alabama

April 8, 1924

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by Russell J. Wilkinson against the Birmingham Finance Company, a partnership composed of E. L. Wright and George Rosenbush, with intervention by Arlie Barber. Judgment for intervener, and defendants appeal. Affirmed.

D. D. Trimble, of Birmingham, for appellants.

Nesbit & Sadler, of Birmingham, for appellee.

SAMFORD, J.

The demurrer to the complaint on the ground of a misjoinder is not well taken. The complaint itself alleges that the money sued for in count B relates to the same transaction as is set out in count A. Hines v. Laurendine, 17 Ala. App. 350, 84 So. 780.

Before we would be authorized to consider an exception to an excerpt from the court's oral charge, it must be made to appear by the bill of exceptions, that the objection was made and the exception was taken, in open court and before the jury retired to consider its verdict. This does not so appear in the record. Moreover the judge by subsequent explanation cured any possible error that might have been in the excerpt excepted to.

E. L. Wright and George Rosenbush were both defendants, parties to the suit; the appeal was joint, and no separate assignments of errors appear as to these defendants. The partnership could not complain at the refusal of charge 5, and, if the refusal of this charge was error, such ruling was not prejudicial to the partnership. 1 Mitch. Dig. 467, p. 721 (1).

We find no error in the record, and the judgment is affirmed.

Affirmed.