Bryan v. Day, 1 Div. 785.
| Decision Date | 21 December 1933 |
| Docket Number | 1 Div. 785. |
| Citation | 228 Ala. 91,151 So. 854 |
| Parties | BRYAN v. DAY et al. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 18, 1934.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Action in trespass and trover by S. R. Bryan against Charles Day individually and doing business as Charles Day Motor Company. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
D. P Moore, of Mobile, for appellant.
Gordon Edington & Leigh, of Mobile, for appellee.
This case was once before in this court, and is reported in 225 Ala. 687, 145 So. 150. The former appeal was by the present appellant. We then reversed and remanded the case, holding that the first, fourth, and fifth counts of the complaint were laid in trespass to realty; that the second count was in trespass to personalty, while the third count was in trover for the conversion of the same property.
On remandment of the case to the circuit court, original counts 6 and 7 were amended, and plaintiff added counts 8, 9, and 10.
The defendant's demurrers to each of said counts were overruled by the court, and the defendant filed (refiled) thereto his pleas 1 and 2, which were originally filed by him on March 31, 1933. Plea 1 was the general issue, and plea 2 was a special plea, attempting to set up justification under legal process. These pleas were refiled on April 22, 1933.
On May 1, 1933, the plaintiff filed demurrers to pleas 1 and 2, the demurrers being directed to both pleas. The court overruled the demurrers, and, on account of this adverse ruling of the court, the plaintiff suffered a nonsuit, with an appeal to this court on the record.
In this court, upon the record, the appellant has made the following assignment of error: "The Circuit Court of Mobile County erred in overruling demurrer of plaintiff to pleas of defendant as refiled to counts one to ten, as shown on page 23 of record."
Manifestly, plea 1, being a plea of the general issue, was not subject to demurrer, and our settled rule is that an assignment of error embracing several rulings, to be sustainable, must be good as to all. Green v. Waynesboro Motor Co., 217 Ala. 348, 116 So. 363; Bobo v. Tally et al., 213 Ala. 83, 104 So. 32; Brown v. Shorter et al., 195 Ala. 692, 71 So. 103; 7 Mayfield's Digest, page 25. This rule, therefore, forecloses determination here of the sufficiency of defendant's second plea, and leads to an affirmance of the judgment appealed from, without regard to the sufficiency of plea 2, in as much as plea 1-the general issue-was good.
However in affirming the case, we do not wish to be understood as holding plea 2 to sufficiently comply with the rule of good pleading in its averments with reference to the process under which the defendant attempts to justify his conduct, which was complained of in the several counts of the complaint. The appellee seems to be of the opinion that nothing else could have been averred in the plea to make it more fully appear that the process was regular on its face and issued by competent authority. A...
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...but one assignment of error and that since two of these assignments were bad, the entire assignment of error was of no avail. Bryan v. Day, 228 Ala. 91, 151 So. 854; White v. Henry, 255 Ala. 7, 49 So.2d 779; Tucker v. City of Birmingham, 35 Ala.App. 540, 50 So.2d Without deciding whether or......
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