J.C. Carland & Co. v. Burke, 6 Div. 993
| Court | Supreme Court of Alabama |
| Writing for the Court | GARDNER, J. |
| Citation | 73 So. 10,197 Ala. 435 |
| Parties | J.C. CARLAND & CO. et al. v. BURKE. |
| Decision Date | 16 November 1916 |
| Docket Number | 6 Div. 993 |
73 So. 10
197 Ala. 435
J.C. CARLAND & CO. et al.
v.
BURKE.
6 Div. 993
Supreme Court of Alabama
November 16, 1916
Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.
Action by R.I. Burke, as administrator, against J.C. Carland & Co. and another. Judgment for plaintiff, and defendants appeal. Affirmed. [73 So. 11.]
Geo. H. Parker, of Cullman, and Eyster & Eyster, of New Decatur, for appellants.
A.A. Griffith and F.E. St. John, both of Cullman, for appellee.
GARDNER, J.
This appeal is upon the record only; the motion to establish the bill of exceptions having been previously denied.
It is insisted by counsel for appellant that there was reversible error in overruling the demurrer to counts 3 and 4 of the complaint. There appear in the record what purports to be counts 3 and 4, although neither is signed by counsel nor marked filed. Waiving this deficiency for the purpose of this case, however, it is to be noted that the demurrer addressed thereto reads as follows: "To the third and fourth counts as amended on the 15th day of September, 1914." The amendment to these counts does not appear in the record; the judgment entry showing merely a ruling on the demurrers as to counts 3 and 4. Presumption must therefore be indulged in favor of the ruling of the court below.
The record sets out a ruling of the court on the demurrer to the original counts, but does not show such demurrer. It discloses demurrers to the counts as amended on September 15, 1914; but such counts as amended do not appear in the record, nor does any ruling of the court on any demurrer to the counts as amended so appear. In this state of the case, therefore, reversible error cannot be rested on this insistence. L. & N.R.R. Co. v. Thomason, 171 Ala. 183, 55 So. 115; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 So. 498; Parsons v. Age-Herald Co., 181 Ala. 439, 61 So. 345.
It is next insisted that there was error in denying the petition for the removal of the cause.
The record discloses a suit against the two defendants for a joint tort, and the petition, upon its face, discloses no grounds for the removal of the cause under the statute provided therefor. It alleges, however, that the South & North Alabama Railroad Company was jointly made a party defendant, for the purpose of preventing the removal of the cause. As said by this court in So. Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293, it is the general rule that fraud, when alleged,...
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Liverpool & London & Globe Ins. Co. v. McCree, 6 Div. 954.
...would prevent a review by this court of the ruling thereon. Holley v. Coffee, 123 Ala. 406, 26 So. 239; J. C. Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Wade v. State, 170 Ala. 32, 54 So. 171; Moss v. State, 16 Ala. App. 34, 75 So. 179. This is not the rule where demurrer is sustained......
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Wright-Nave Contracting Co. v. Alabama Fuel & Iron Co., 6 Div. 953.
...avoid responsibility in its execution by letting or subletting the work to an independent contractor. The case of Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10, is like the case at bar. There the South & North Railroad Company was having a right of way constructed through Cullman, which n......
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Berkowitz v. Farrell, 6 Div. 145.
...40 So. 753; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239; Berger v. Dempster, 204 Ala. 305, 85 So. 392; Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Central of Ga. Ry. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325; Alabama Power Co. v. Ferguse......
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Alabama Power Co. v. Fergusen, 6 Div. 71
...of the complaint avail nothing. Berger v. Dempster, 85 So. 392; Ala. Chem. Co. v. Niles, 156 Ala. 298, 47 So. 239; Carland & Co. v. Burks, 197 Ala. 435, 73 So. 10; Cent. of Ga. R.R. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Cent. of Ga. R.R. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. L......
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Liverpool & London & Globe Ins. Co. v. McCree, 6 Div. 954.
...would prevent a review by this court of the ruling thereon. Holley v. Coffee, 123 Ala. 406, 26 So. 239; J. C. Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Wade v. State, 170 Ala. 32, 54 So. 171; Moss v. State, 16 Ala. App. 34, 75 So. 179. This is not the rule where demurrer is sustained......
-
Wright-Nave Contracting Co. v. Alabama Fuel & Iron Co., 6 Div. 953.
...avoid responsibility in its execution by letting or subletting the work to an independent contractor. The case of Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10, is like the case at bar. There the South & North Railroad Company was having a right of way constructed through Cullman, which n......
-
Berkowitz v. Farrell, 6 Div. 145.
...40 So. 753; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239; Berger v. Dempster, 204 Ala. 305, 85 So. 392; Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Central of Ga. Ry. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325; Alabama Power Co. v. Ferguse......
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Alabama Power Co. v. Fergusen, 6 Div. 71
...of the complaint avail nothing. Berger v. Dempster, 85 So. 392; Ala. Chem. Co. v. Niles, 156 Ala. 298, 47 So. 239; Carland & Co. v. Burks, 197 Ala. 435, 73 So. 10; Cent. of Ga. R.R. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Cent. of Ga. R.R. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. L......