Clancy v. Taylor
| Decision Date | 08 April 1915 |
| Docket Number | 152 |
| Citation | 12 Ala.App. 557,68 So. 522 |
| Parties | CLANCY v. TAYLOR et al. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.
Action by John M. Clancy against James P. Taylor and others. Judgment for defendants, and plaintiff appeals. Affirmed.
The action was on the common counts, to which several pleas were filed, among which is plea 2, as amended:
On, to wit, July 13, 1913, defendant was contemplating a dissolution of the partnership then existing between defendant James P. Taylor and Grover C. Clancy, doing business at Pritchard, Ala., and purchasing the interest of said Clancy therein, and assuming the indebtedness and liability of said firm; and, for the purpose of determining upon what terms he would be willing to purchase said interest, he undertook to ascertain in what amount, if any the value of the assets of the firm exceeded its liabilities. Plaintiff, knowing the purposes thereof, assisted defendant Taylor in ascertaining the value of its assets and the extent of its liabilities. Defendant Taylor did not know that plaintiff claimed the firm was indebted to him, as was alleged in the complaint, and did not include such debt among the liabilities of the firm, which fact was known to plaintiff. While plaintiff was so assisting the said James Taylor, said Taylor asked plaintiff if he knew of any debts of the partnership that plaintiff had not informed said Taylor of, and plaintiff replied that there were none, and defendant relied upon the said statement of plaintiff and purchased the interest of said firm, and assumed its liability upon terms which he would not have purchased the same had he been informed by plaintiff that said firm was indebted as alleged in the complaint.
The third replication is that plaintiff says that the transaction out of which the indebtedness sued upon arose was had at the request of said Taylor.
Jesse F. Hogan, of Mobile, for appellant.
Harry H. Smith and Mell A. Frazer, both of Mobile, for appellees.
The appellees before submission of this case entered a motion to strike the bill of exceptions because it was prepared in violation of rule 32, Circuit and Inferior Court Practice (Code 1907, vol. 2, p. 1526), and the case was submitted on this motion and on the merits.
The paper signed by the trial judge and set out in the record as a bill of exceptions is nothing but a full stenographic report of the trial, embodying the questions of counsel and the answers of the witnesses, as well as the remarks made by the court and counsel as the trial proceeded. While the only question sought to be reviewed on the bill of exceptions is the action of the court in rendering judgment for the defendant Taylor, the bill does not show that an exception was reserved to this action of the court. Under the uniform rulings on this question, the motion of appellees to strike from the record the stenographic report of the trial must be granted. Southern Ry. Co. v. Jackson, 133 Ala. 384 31 So. 988; Gassenheimer Paper Co. v. Marietta Paper Co., 127 Ala. 183, 28 So. 564; Hester v Cantrell, 169 Ala. 490, 53 So. 1009; Lucas v. Mays, 2 Ala.App. 497, 56 So. 593; Irby v. Kaigler, 6 Ala.App. 91, 60 So. 418; Owens v. State, 11 Ala.App. 309, 66 So. 852.
The record shows no judgment on the ...
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