Hays v. Solomon

• Decision Date: 26 May 1890
• Citation: 7 So. 921,90 Ala. 520
• Parties: HAYS v. SOLOMON.
• Court: Alabama Supreme Court

7 So. 921

90 Ala. 520

HAYS v. SOLOMON.

Supreme Court of Alabama

May 26, 1890

Appeal from circuit court, Talladega county; LEROY F. BOX, Judge.

Action on a promissory note by E. Solomon against James H. Hays and James F. Thomas, as partners. There was a verdict and judgment against both defendants, and James H. Hays appeals.

E. H. Hanna, for appellant.

Knox & Bowie, for appellee.

CLOPTON, J.

The court having given a general charge to which no exception was taken at the time, the jury retired to consider their verdict. After remaining but a short time, they returned and asked further instructions, which the court gave, and while the jury were in the act of retiring the second time defendant excepted to a part of the general charge given in the first instance. Section 2758 of the Code prescribes: "Either party in any civil case, during the trial of the cause, may reserve, by bill of exceptions, any charge, opinion, or decision of the court touching the cause of action which would not otherwise appear of record." Under the statute the rule recognized in practice has been that the exception must be taken before the jury leave the bar. Montgomery v. Gilmer, 33 Ala. 116; Reynolds v. State, 68 Ala. 507. The exception came too late. The motion in arrest of judgment was based on the ground that one count in the complaint is insufficient and defective, for reasons specially assigned. Whether a judgment should be arrested because of amendable defects in the complaint, it is not necessary to decide. The finding of the jury was general. Since the statute of 1824, of which section 2835 of the Code is a substantial re-enactment, a general finding, when the complaint contains good and bad counts, has been referred to the good counts. The section provides: "No judgment can be arrested, annulled, or set aside for any matter not previously objected to, if the complaint contains a substantial cause of action." It is not controverted that one of the counts in the complaint sets forth a substantial cause of action, and the defective count was not previously objected to. The motion was properly overruled. Affirmed.