J.C. Carland & Co. v. Burke

• Decision Date: 16 November 1916
• Docket Number: 6 Div. 993
• Citation: 73 So. 10,197 Ala. 435
• Court: Alabama Supreme Court
• Parties: J.C. CARLAND & CO. et al. v. BURKE.

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.

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, must be clearly and satisfactorily proven. The affidavit of counsel for appellee contains a full explanation of why the railroad company was made a party defendant, and insists upon its entire good faith in so doing, which insistence was not met by counterproof. Verdict and judgment were rendered against both defendants. We are of the conclusion that the trial court was entirely justified in denying the petition. So. Ry. Co. v. Arnold, supra; Ill. Cen. Ry. v. Robinson, 189 Ala. 523, 66 So. 519; Ala. So. Ry. v. Thompson, 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; K.C., etc., Ry. v. Herman, 187 U.S. 63, 23 Sup.Ct. 24, 47 L.Ed. 76; Hopkins Judic.Code, pp. 63-67.

The case of Stix & Co. v. Keith, 90 Ala. 121, 7 So. 423 cited by counsel for appellant, discloses a petition in all respects sufficient, as justifying a removal of the...