Floyd v. Lamar

• Decision Date: 30 June 1915
• Docket Number: 115
• Citation: 69 So. 227,13 Ala.App. 504
• Parties: FLOYD et al. v. LAMAR et al.
• Court: Alabama Court of Appeals

69 So. 227

13 Ala.App. 504

FLOYD et al. v. LAMAR et al.

No. 115

Court of Appeals of Alabama

June 30, 1915

Appeal from Law and Equity Court, Marengo County; E.J. Gilder Judge.

Law Lamar and another brought suit against C.A. Floyd & Co. and the individual members of the firm for breach of contract for the sale of cotton. Judgments for plaintiffs, and defendants appeal. Affirmed.

Summons was executed on both of the defendants on June 21, 1911, and on July 8, 1911, the defendants filed their demurrer to the complaint, and on the filing demanded a trial by jury. In November, 1911, the demurrers were overruled, and after plea filed the attorneys for defendant withdrew their appearance. On motion of the plaintiff the court without a jury rendered judgment against the defendants, and executed a writ of inquiry finding defendants due the plaintiffs the sum of $815, for which judgment was rendered. After expiration of that time at the court, and on May 2, 1914, plaintiffs filed a motion in said court to amend and correct said judgment. Notice of this motion to amend was served on both defendants and the defendant Samuel Floyd filed his demurrers to said motion, which the court overruled, and proceeded to correct the judgment as of the date of his rendition.

Wm Cunninghame, of Linden, for appellants.

Reese &amp Reese, of Selma, for appellees.

BROWN J.

This court cannot review the action of a trial court in proceeding to judgment after due service of process, where the judgment is not premature, in the absence of a bill of exceptions properly presenting the question. Williams, Adm'r, v. Woodward Iron Co., 106 Ala. 254, 17 So. 517; Alosi v. Birmingham Waterworks Co., 1 Ala.App. 630, 55 So. 1029; Wallace v. North Ala. Traction Co., 40 So. 89. ^[1]

Neither will the court review the action of the trial court in granting motion to amend nunc pro tunc in the absence of a bill of exceptions showing that exception was reserved thereto. Leinkauff & Strauss v. Tuscaloosa Sale & Advancing Co., 105 Ala. 328, 16 So. 891; Basenberg v. Lawrence, 160 Ala. 422, 49 So. 771; Turk v. Smith & Co., 2 Port. (Ala.) 155.

Furthermore, clerical errors or mistakes in stating the names of the parties in the minutes of the court are corrected by the other parts of the record, without motion to amend. Patterson & Hinson v. Burnett, 6 Ala. 844; Smith v. Redus, 9 Ala. 101, 44 Am.Dec. 429; Kennedy v. Young, 25 Ala. 564; Lamkin v. Dudley, 34 Ala. 117.

We find...