Lusk v. Champion Register Co., 6 Div. 752

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, J.
Citation79 So. 16,201 Ala. 596
PartiesLUSK et al. v. CHAMPION REGISTER CO.
Decision Date11 April 1918
Docket Number6 Div. 752

79 So. 16

201 Ala. 596

LUSK et al.
v.
CHAMPION REGISTER CO.

6 Div. 752

Supreme Court of Alabama

April 11, 1918


Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Suit by the Champion Register Company against James W. Lusk and others, as receivers of the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendants appeal. Submitted on motion to strike bill of exceptions and upon the merits. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. [79 So. 17]

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellants.

Francis M. Lowe, of Birmingham, for appellee.

GARDNER, J.

We pretermit, as unnecessary to be determined, the question as to whether or not, under the peculiar circumstances of this case, the ruling of the court in reinstating the cause upon the docket by order entered in February, 1916, is reviewable under the bill of exceptions presented in April, 1917. If reviewable, the action of the court was clearly without error, as we are of the opinion that the nonsuit taken by the plaintiff on account of the adverse rulings of the court, in sustaining the amended plea in abatement, was not a voluntary nonsuit in the sense insisted upon by counsel for appellants, and treated in the authority cited of Simpson v. Brock, 114 Ga. 294, 40 S.E. 266. It was an involuntary nonsuit, in that it was produced by such adverse rulings, and, clearly, the trial court had the right within 30 days thereafter to correct the ruling, and to permit, on motion of the plaintiff, a reinstatement of the cause.

The record discloses that the trial of the cause was had on January 5, 1917, before Hon. C.B. Smith. The bill of exceptions was presented to him on April 4, 1917, but was not signed until July 19, 1917. It was therefore not signed within the 90 days following its presentation, and the motion of the appellee to strike the same, so far as it purports to be a bill of exceptions signed by the said presiding judge, must be sustained. Section 3019, Code 1907; Rice v. Beavers & Co., 196 Ala. 355, 71 So. 659.

Counsel for appellants insist, however, that irrespective of the action of the court upon the motion to strike the bill of exceptions, the court can review, from the recitals of the record proper, the action of the court on January 5, 1917, in sustaining the motion to strike the amended plea in abatement; and this, whether an exception appears to have been entered or not....

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4 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...Knitting Mills v. Butner, 200 Ala. 288, 290, 76 So. 54; Collins v. M. & O.R. Co., 210 Ala. 234, 97 So. 631; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16), as before the amended complaint, when it was stricken (B.R., L. & P. Co. v. Fox, 174 Ala. 657, 669, 56 So. 1013). In determini......
  • Hamrick v. Town of Albertville, 8 Div. 404.
    • United States
    • Supreme Court of Alabama
    • April 12, 1934
    ...for review. Section 9459, Codes 1928 and 1923; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; King v. Scott, 217 Ala. 511, 116 So. 681; Thomas v. Carter, 218 Ala. 55......
  • Wimbush v. State, 6 Div. 376.
    • United States
    • Supreme Court of Alabama
    • January 26, 1939
    ...record should show that exceptions were reserved in the lower court to the rulings on said motions. Lusk et al. v. Champion Register Co., 201 Ala. 596, 79 So. 16. And this Court has specifically held that the overruling by the Court of a motion to quash venire and to continue is reviewable ......
  • Asbury v. Mountz, 8 Div. 803
    • United States
    • Supreme Court of Alabama
    • October 7, 1937
    ...must be presented by bill of exceptions. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16. Reversed and remanded. ANDERSON, C.J., and GARDNER and FOSTER, JJ., concur. ...
4 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...Knitting Mills v. Butner, 200 Ala. 288, 290, 76 So. 54; Collins v. M. & O.R. Co., 210 Ala. 234, 97 So. 631; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16), as before the amended complaint, when it was stricken (B.R., L. & P. Co. v. Fox, 174 Ala. 657, 669, 56 So. 1013). In determini......
  • Hamrick v. Town of Albertville, 8 Div. 404.
    • United States
    • Supreme Court of Alabama
    • April 12, 1934
    ...for review. Section 9459, Codes 1928 and 1923; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; King v. Scott, 217 Ala. 511, 116 So. 681; Thomas v. Carter, 218 Ala. 55......
  • Wimbush v. State, 6 Div. 376.
    • United States
    • Supreme Court of Alabama
    • January 26, 1939
    ...record should show that exceptions were reserved in the lower court to the rulings on said motions. Lusk et al. v. Champion Register Co., 201 Ala. 596, 79 So. 16. And this Court has specifically held that the overruling by the Court of a motion to quash venire and to continue is reviewable ......
  • Asbury v. Mountz, 8 Div. 803
    • United States
    • Supreme Court of Alabama
    • October 7, 1937
    ...must be presented by bill of exceptions. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16. Reversed and remanded. ANDERSON, C.J., and GARDNER and FOSTER, JJ., concur. ...

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