O.H. Broun, Jr., Timber Co. v. Coleman

• Decision Date: 17 December 1914
• Docket Number: 849
• Parties: O.H. BROUN, JR., TIMBER CO. v. COLEMAN.
• Court: Alabama Supreme Court

67 So. 243

190 Ala. 315

O.H. BROUN, JR., TIMBER CO. v. COLEMAN.

No. 849

Supreme Court of Alabama

December 17, 1914

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by James L. Coleman against the O.H. Broun, Jr., Timber Company, a co-partnership consisting of Olney H. Broun and G T. Loper. Judgment for the plaintiff, and defendant Loper appeals. Affirmed.

Webb &amp McAlpine, of Mobile, for appellant.

R.H. &amp R.M. Smith, of Mobile, for appellee.

GARDNER J.

Suit upon promissory note signed: "O.H. Broun, Jr., Timber Co., by O.H. Broun, Jr." The suit was begun by garnishment. The garnishment affidavit set out the name of each defendant as O.H. Broun, Jr., Timber Company, and Olney H. Broun and G.T. Loper, and so also does the bond. The two garnishment writs each show the same, and each contains the further recitation that the O.H. Broun, Jr., Timber Company is a partnership composed of Olney H. Broun, Jr., and G.T. Loper. The complaint seems to be without a caption, and does not name the defendants. There was a formal appearance duly filed by counsel for "all of the defendants," and special pleas were subsequently filed by G.T. Loper, one of which special pleas set up that on the 30th day of October, 1913, the "partnership between O.H. Broun and this defendant was dissolved," etc. The trial was had before the court without a jury, resulting in a verdict against all the defendants, including said G.T. Loper, but not without right of exemptions as to same by said Loper. The appeal is taken by G.T. Loper, who is sole appellant.

The point is made in brief of counsel lot appellant that the complaint fails to show there was more than one defendant, although the judgment entry shows judgment against more than one. This insistence can be of no avail to this appellant. There is no assignment of error taking this point, and it seems to have been first raised in brief of counsel on this appeal. In addition to this, appellant appeared and filed special pleas, as shown by this record, and from the judgment he prosecutes this appeal. Had the question been presented by due assignment of error, we do not wish to be understood as indicating that other parts of the record, as hereinabove shown, could not be looked to for the purpose of identification of the parties in connection with the judgment entry. This it is unnecessary to determine. We cite, however, Greer & Walker v. Liipfert-Scales Co., 156 Ala. 572, 47 So. 307.

The bill of exceptions in its first recitals shows that the suit was brought upon promissory note against O.H. Broun and G.T. Loper, individually, and O.H. Broun, Jr., Timber Company, a partnership composed of Olney H. Broun, Jr., and G.T. Loper.

The defendant Loper filed several special pleas. They were stricken from the file on motion of plaintiff because they were filed too late. The first five assignments of error relate to this action of the court, but these assignments are by appellant's counsel expressly waived or abandoned in his brief. Confessedly, therefore, these special pleas were properly stricken.

The bill of exceptions then shows that counsel for appellant immediately again handed said pleas to the clerk and instructed him to mark them refiled, at the same time announcing that said pleas were being refiled. The clerk indorsed on said pleas, "Refiled April 3, 1914," and while they were then being so marked plaintiff's counsel said to the court, "I suppose it is not necessary for me to again move to strike these pleas, as the court has already struck them out on my former motion." To this the court replied, "No, sir; I have already ruled on your motion and struck the pleas, and I do not propose to consider them any further." Counsel for appellant then said he insisted the pleas were in, and that they had been by the clerk refiled, and the court responded that he was satisfied with its ruling, and that, if the rule meant anything relative to filing...