Blackford v. Jefferson Specialties, Inc.

• Decision Date: 10 July 1970
• Docket Number: 6 Div. 763
• Citation: 286 Ala. 205,238 So.2d 706
• Parties: Frank S. BLACKFORD, as Trustee, etc. v. JEFFERSON SPECIALTIES, INC., a Corp., et al.
• Court: Alabama Supreme Court

Page 706

238 So.2d 706

286 Ala. 205

Frank S. BLACKFORD, as Trustee, etc. v. JEFFERSON SPECIALTIES, INC., a Corp., et al.

6 Div. 763.

Supreme Court of Alabama.

July 10, 1970.

Rehearing Denied Aug. 20, 1970.

Denaburg & Jones, Holt & Cooper, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, Reib B. Barnes, William G. Somerville, Birmingham, for appellees.

McCALL, Justice.

This appeal is brought on the record, under Tit. 7, § 819, Code of Alabama, 1940, without a transcript of evidence. The plaintiff, the appellant here, sues in his capacity as trustee in bankruptcy of the estate of Parliament House of Birmingham, Inc., a corporation. After the court sustained demurrers to the original complaint on December 18, 1967, the plaintiff amended his complaint by substituting Counts One-A, Two-A, Three-A, Four-A, and Five-A, respectively, for each correspondingly numbered count in the original complaint and added Count Six and Count Seven. These counts sound in tort, with the exception of Count Five-A, which is ex contractu. They undertake to allege successively: One-A, a wrongful taking of the personal property of the Parliament House of Birmingham, Inc., Two-A, a conversion of its personal property, Three-A, an unlawful eviction of the Parliament House from its premises, Four-A, a trespass to the real property in its possession and to personal property belonging to it, Five-A, for money received by the defendants to the use of the plaintiff from April 15, 1965, to June 20, 1965, Six, a trespass to real property in the possession of Parliament House and an unlawful dispossession of Parliament House therefrom, and Seven, a trespass to land in possession of Parliament House.

Each defendant refiled his former demurrer, with added grounds, to the separate counts of the complaint as amended. On December 5, 1968, the court overruled the demurrer to Count Five-A and sustained it to all other counts. The plaintiff declined to plead further and moved the court for a nonsuit on account of the adverse ruling of the court of December 5, 1968, sustaining the demurrer to the complaint. The court granted appellant's motion for a nonsuit, and on April 18, 1969, entered a judgment of nonsuit, dismissed the cause, and ordered that the defendant go hence without day, with all costs accrued being taxed against the appellant for which execution might issue.

The plaintiff has appealed from said judgment of April 18, 1969, pursuant to Tit. 7, § 819, Code of Alabama, 1940. This statute provides that if, from any ruling or decision of the court on the trial of a cause, either upon the pleadings, admissions, or rejection of evidence, or charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the plaintiff may take such nonsuit, and, in the manner provided by the statute, have the particular adverse ruling which created the necessity for the nonsuit reviewed by the appellate tribunal. The defined necessity must be shown by the record in order that the right to appeal may appear. Long v. Holley, 157 Ala. 514, 47 So. 655; Corn Products Refining Co. v. Dreyfus Bros., 3 Ala.App. 529, 57 So. 517.

Prior to the enactment of our nonsuit statute, an appeal would not lie from a judgment on a voluntary nonsuit resulting from rulings of the court adverse to his right of recovery. Hurst & McWhorter v. Bell & Co., 72 Ala. 336; Prichard v. Sweeney, 109 Ala. 651, 19 So. 730. The only authority upon which an appeal may now be taken from a voluntary nonsuit is our statute. Tit. 7, § 819, Code of Alabama, 1940. Wilbanks v. Mitchell, 239 Ala. 167, 194 So. 513; Engle v. Patterson, 167 Ala. 117, 52 So. 397; Ex parte Martin, 180 Ala. 620, 61 So. 905; Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Rogers' Administrator v. Jones, 51 Ala. 353; Corn Products Refining Co. v. Dreyfus Bros., 3 Ala.App. 529, 532, 57 So. 517.

Under this statute to revise rulings of trial courts after voluntary nonsuits, the record proper must show a necessity for the nonsuit in order to support a judgment on appeal. The record is sufficient to authorize the revision of the trial court's ruling, if it is made reasonably certain thereby that the nonsuit was rendered necessary in consequence of the adverse ruling of the court. Hurst & McWhorter v. Bell & Co., 72 Ala. 336; Ex parte Martin, 180 Ala. 620, 61 So. 905; Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Kennedy v. Lyric Theatre Co., 213 Ala. 153, 104 So. 274; Maze v. Employees' Loan Society, 217 Ala. 44, 114 So. 574. On consideration the record here does not support the recitals of the judgment-entry of nonsuit, made by the trial court on April 18, 1969, so as to make it reasonably certain that the nonsuit was rendered necessary, for the plain reason that the court did not sustain the demurrer to the entire complaint, as amended, but overruled the demurrer to Count Five-A, and sustained it as to all other counts thereof. Thus one good count remained in the amended complaint.

Since, in an original complaint, all actions ex delicto may be joined with actions ex contractu, arising out of the same transaction, or relating to the same subject matter, Tit. 7, § 220, Code of Alabama, 1940, we assume in the present case, under Tit. 7, § 239, there being nothing to the contrary in the record, that the ex contractu amendment viz.: Count Five-A, referred to the same transaction, property and title and parties as in the original counts, for otherwise this amended action could not have been joined in the complaint under the statute. Therefore, there is nothing in the record to show that the appellant's cause could not have been presented under Count Five-A. It follows that the entire cause is not before this court and the integrity of the case is not preserved as is necessary. Simpson v. City of Montgomery, 282 Ala. 368, 211 So.2d 498; Duncan v. Hargrove, 22 Ala. 150, 161.

In Kennedy v. Lyric Theatre Co., 213...