National Surety Co. v. O'Connell

• Decision Date: 16 January 1919
• Docket Number: 1 Div. 82
• Parties: NATIONAL SURETY CO. v. O'CONNELL.
• Court: Alabama Supreme Court

81 So. 660

202 Ala. 684

NATIONAL SURETY CO. v. O'CONNELL.

1 Div. 82

Supreme Court of Alabama

January 16, 1919

Certiorari to Court of Appeals.

Action by John C. O'Connell against the National Surety Company on the bond given by one Wilson as principal and said Company as surety. There was a judgment of the Court of Appeals (81 So. 146) affirming a judgment, from which the Surety Company had appealed, and the Surety Company brings certiorari. Writ denied.

Armbrecht, Johnston & McMillan and J. Osmond Middleton, all of Mobile, for appellant.

Gaillard, Mahorner & Arnold, of Mobile, for appellee.

ANDERSON, C.J.

Upon the consideration of this application, we are of the opinion that the decision of the Court of Appeals, 81 So. 146, is correct in the final result, and the writ is denied. We must not be understood, however, as sanctioning the opinion of the Court of Appeals, in so far as it reviews or would revise the ruling upon motion to strike nonrecoverable items or immaterial averments from the complaint, as we have a long line of decisions holding that the ruling upon such motions is not revisable by this court, and that advantage must be had by objecting to the evidence or by special instructions. L. & N.R.R. v. Fletcher, 194 Ala. 259, 69 So. 634; Bixby v. Evans, 174 Ala. 571, 57 So. 39; So. R.R. v. Coleman, 153 Ala. 266, 44 So. 837; Woodstock v. Stockdale, 143 Ala. 550, 39 So. 335, 5 Ann.Cas. 578; Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Marx v. Miller, 134 Ala. 347, 32 So. 765; Columbus R.R. v. Bridges, 86 Ala. 448, 5 So. 864, 11 Am.St.Rep. 58; Goldsmith v. Picard, 27 Ala. 142. The Act of 1915, p. 598, does not change or abrogate this rule. It merely dispenses with the necessity of setting written motions out in the bill of exceptions or of excepting to the ruling upon same, but does not enlarge as to what would or would not be reversible error as to the action taken upon same by the trial court; in other words, it does not make rulings upon same that were not heretofore revisable upon appeal reviewable since the enactment of said statute.

Writ denied.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.