Daniel v. Ormand

• Decision Date: 16 April 1935
• Docket Number: 6 Div. 572
• Citation: 26 Ala.App. 441,163 So. 361
• Parties: DANIEL v. ORMAND.
• Court: Alabama Court of Appeals

163 So. 361

26 Ala.App. 441

DANIEL v. ORMAND.

6 Div. 572

Court of Appeals of Alabama

April 16, 1935

Rehearing Denied June 4, 1935

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action on promissory note by Russ Daniel against Julius Ormand. From a judgment for defendant, plaintiff appeals.

Affirmed.

Certiorari denied by Supreme Court in Daniel v. Ormand (6 Div 806) 163 So. 362.

M.B Grace, of Birmingham, for appellant.

Taylor & Higgins and Chas. M. Hewitt, all of Birmingham, for appellee.

RICE, Judge.

With us, the word "month," unless otherwise expressed means a "calendar month" (Code 1928, § 9; Sovereign Camp, W.O.W., v. Reed, 208 Ala. 457, 94 So. 910), which, according to Webster's New International Dictionary, means "the time from any day of any of the months as adjusted in the calendar to the corresponding day (if any; if not, to the last day) of the next month."

It was requisite that the appeal in this case be taken "within six months from the rendition of the judgment" (Code 1928, § 6127); otherwise, it would be our duty to dismiss it ex mero motu. McKenzie v. Jensen, 200 Ala. 191, 75 So. 939; Code 1928, § 7318. And, of course, the "judgment" may be, as here, that refusing appellant's motion for a new trial. Code 1928, §§ 6088, 6433.

The judgment overruling appellant's said motion was rendered on April 22, 1933. Appellant instituted his appeal by "giving security for the costs of the appeal" (Code 1928, § 6101) on October 23, 1933; October 22, 1933, falling on Sunday. Code 1928, § 13. We hold the appeal was taken within the time prescribed by law. Doyle v. First National Bank, 131 Ala. 294, 30 So. 880, 90 Am.St.Rep 41.

The appeal is on the record proper, without bill of exceptions.

The general affirmative charge was given at appellee's request.

Numerous pleas, affording a complete answer to the complaint, were interposed and no demurrer lodged against same, or any of same.

The only questions presented properly for our consideration are those arising out of the action of the trial court in overruling appellant's demurrers to appellee's pleas 6 and 8.

As said by Mr. Justice Thomas, for the majority of the Supreme Court in the case of Black v. Sloss-Sheffield Steel & Iron Co., 202 Ala. 506, 80 So. 794, so we repeat, as applicable here (Code 1923, § 7318): "In the instant case, no nonsuit having been taken because of adverse rulings on the pleadings, and [the cause] having proceeded to trial on the merits, the general affirmative charge, given for defendant on its [his] written request, being the only charge requested and given, was, for aught that the record discloses, given...