Logan v. O'Barr
| Decision Date | 30 June 1960 |
| Docket Number | 6 Div. 462 |
| Citation | 122 So.2d 376,271 Ala. 94 |
| Court | Alabama Supreme Court |
| Parties | Odis W. LOGAN v. Billy H. O'BARR. |
Geo. D. Finley and M. B. Grace, Birmingham, for appellant.
Davies, Williams & Wallace, Birmingham, for appellee.
This suit comes here on a nonsuit taken by appellant, plaintiff below, on account of the adverse rulings of the trial court on the pleadings. § 819, Title 7, Code 1940.
On May 16, 1958, Odis W. Logan filed suit it the Circuit Court of Jefferson County to recover damages from the defendant, Billy H. O'Barr, alleged to have resulted from the negligent and wanton conduct of the defendant in operating an automobile which was in a collision on February 24, 1958, at the intersection of 36th Avenue, North, and 63rd Street in the City of Birmingham with an automobile operated by the plaintiff.
On May 30, 1958, the defendant, O'Barr, filed a demurrer which as refiled to the amended complaint was overruled on May 22, 1959.
There appears to be disagreement as to the pleas which the defendant, O'Barr, filed immediately after his demurrer was overruled. One attorney who has filed a brief here on behalf of Logan takes the position that O'Barr filed Pleas One and Two but struck those pleas before filing Pleas Three and Four. On the other hand, another attorney who appears here on behalf of Logan argues in effect that Pleas One and Two were filed and had not been stricken prior to the filing of Pleas Three and Four. Counsel for O'Barr contends that Pleas One and Two were never filed.
The record proper shows that on May 22, 1959, O'Barr filed an instrument which bears the caption 'Answer,' which instrument as originally drafted consisted of four pleas. Plea One is the general issue. Plea Two is a plea of contributory negligence. Plea Three avers the existence of a judgment in another court which is averred to be 'res judicata of this cause.' Plea Four also avers the existence of the judgment in the other court, which judgment the plea avers estops the plaintiff, Logan, from maintaining this suit.
Pleas One and Two are set out in the record before us as a part of the 'Answer,' but two ink lines which cross to form an X have been drawn across those pleas as they appear in this record.
There is no mention of Pleas One and Two in the judgment entry. That entry recites in pertinent parts as follows:
'It is ordered and adjudged by the court that said demurrer be and the same is hereby overruled; the defendant by separate paper filed interposes pleas Three and Four, separately and severally, to Counts One and Two as amended, separately and severally.' (Emphasis supplied.)
Our decisions support the view that even when there is a conflict between the judgment entry and other parts of the record proper, the judgment entry should prevail. See Clary v. Cassels, 258 Ala. 183, 61 So.2d 692, and cases cited.
We think the record should be construed as showing that the defendant, O'Barr, filed only Pleas Three and Four.
On June 10, 1959, the plaintiff, Logan, filed a motion to strike Pleas Three and Four. On the same day without waiving his motion to strike, Logan filed a demurrer to those pleas and also without waiving his motion to strike or his demurrer, Logan, on the same day, filed his Replications One, Two and Three to the defendant's Pleas Three and Four. Replication One was directed to Plea Three. Replication Two went to Plea Four and Replication Three was directed to Pleas Three and Four.
The trial court, on June 10, 1959, overruled the plaintiff's motion to strike, as well as his demurrer to the defendant's Pleas Three and Four.
The defendant thereupon, in open court, filed demurrer to the plaintiff's Replications One, Two and Three, which demurrer was sustained as to each of the replications.
Plaintiff Logan then filed his Replication Four directed to defendant's Pleas Three and Four. The defendant thereupon demurred to plaintiff's Replication Four. The demurrer was sustained.
Plaintiff thereupon moved for a nonsuit 'on account of the adverse rulings of the court against the plaintiff.' The motion was granted and a judgment of nonsuit entered. As shown above, this appeal was then taken by the plaintiff in accordance with the provisions of § 819, Title 7, Code 1940.
Logan has assigned as error the action of the trial court in overruling his motion to strike O'Barr's Pleas Three and Four, in overruling his demurrer to those pleas, and in sustaining O'Barr's demurrer to Logan's replications.
Where several adverse rulings, taken together, superinduced the nonsuit and such fact or necessity is apparent by the record, all of such adverse rulings will be considered on appeal where proper assignments of error are made and argued. Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Esslinger v. Spragins, 236 Ala. 508, 183 So. 401.
The record in this case, we think, sufficiently shows that it was the cumulative effect of the several rulings assigned as error which superinduced the nonsuit. Consequently, all of such adverse rulings assigned as error and properly argued in briefs filed on behalf of Logan will be considered. Berlin Machine Works v. Ewart Lumber Co., supra.
There is no merit in the assignment of error to the effect that the trial court erred in overruling Logan's motion to strike Pleas Three and Four. Demurrer, and not motion to strike, is the appropriate method of testing the sufficiency of pleas. May v. Strickland, 235 Ala. 482, 180 So. 93; Davis v. Jones, 236 Ala. 684, 184 So. 896; Harris v. Barber, 237 Ala. 138, 186 So. 160. Motions to strike should be granted only where the pleadings are unnecessarily prolix, irrelevant, frivolous or unnecessarily repeated. May v. Strickland, supra, and cases cited.
We come now to a consideration of the assignment of error to the effect that the trial court erred in overruling Logan's demurrer to Pleas Three and Four.
Plea Three reads as follows:
'Defendant says that after this suit was filed in the Circuit Court of Jefferson County, Alabama, by the plaintiff, the defendant filed suit against the plaintiff in the Intermediate Civil Court of Birmingham claiming damages for injuries to defendant's automobile resulting from the same automobile collision which is the basis of this case, and in said case in the Intermediate Civil Court of Birmingham the plaintiff herein filed a plea of recoupment claiming the same property damages to plaintiff's automobile and the same bodily injuries which are claimed in the case at bar, and the Intermediate Civil Court of Birmingham awarded a judgment for the present defendant against the present plaintiff in the amount of Three Hundred ($300.00) Dollars on, to-wit, August 22, 1958, at which time the Intermediate Civil Court of Birmingham denied the present plaintiff's plea of recoupment claiming the same damages as in the case at bar, and said judgment in the Intermediate Civil Court of Birmingham is final as no appeal has been taken within the time permitted by the law of this State. Defendant further avers that the issues tried and determined in said suit in said Intermediate Civil Court of Birmingham were the questions of whether the present plaintiff herein was guilty of negligence on the occasion of this accident, which proximately damaged the defendant and if so, whether the present defendant herein was guilty of negligence which proximately contributed to his alleged injuries and damages. Defendant further avers that said judgment in the Intermediate Civil Court of Birmingham necessarily determined and adjudicated that plaintiff herein was guilty of negligence that proximately contributed to or proximately caused the present defendant's injuries and damages to defendant's automobile and that plaintiff herein was guilty of negligence that proximately contributed to or proximately caused his property damages and bodily injuries which are claimed in the suit at bar; defendant further avers that said judgment in the Intermediate Civil Court of Birmingham determined and adjudicated that defendant herein was not guilty of negligence which proximately contributed to or proximately caused his own property damages, or actionable negligence which proximately contributed to or proximately caused the property damages or personal injuries sustained by the plaintiff herein.
'The defendant attaches hereto as Exhibit 'A', and makes a part hereof, a copy of the complaint as filed by this defendant in said lower court and on which the trial was had; and attaches as Exhibit 'B', and makes a part hereof, a copy of this plaintiff's counter claim as filed by this plaintiff in said lower court and which said counter claim was there tried, all with the result hereinabove averred.
'New Paragraph: Defendant avers that the present plaintiff has had a trial in the Intermediate Civil Court of...
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