Robinson v. Steverson
Decision Date | 13 November 1923 |
Docket Number | 6 Div. 150. |
Citation | 100 So. 910,20 Ala.App. 59 |
Parties | ROBINSON v. STEVERSON. |
Court | Alabama Court of Appeals |
Rehearing Denied April 8, 1924.
Reversed after Mandate June 12, 1924.
Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.
Action on common counts by W. C. Robinson, doing business as the Robinson Lumber Company, against J. M. Steverson. From a judgment for plaintiff for nominal damages, plaintiff appeals. Reversed and remanded.
Rudulph & Smith, of Birmingham, for appellant.
Harsh, Harsh & Harsh, of Birmingham, for appellee.
The judgment was rendered on the 22d day of February, 1922, and the bill of exceptions was not presented until the 2d day of September, 1922. This being more than 90 days from the rendition of the judgment, the bill of exceptions cannot be considered in connection with the judgment in the main trial. McMillon v. Skelton, 208 Ala. 693, 95 So. 148.
Security for costs of appeal was taken and approved July 3 1922, in the following language: "We hereby acknowledge ourselves security for costs of appeal in the above case," etc. The citation of appeal recites: "Whereas W. C. Robinson, doing business as Robinson Lumber Company, has taken an appeal from the circuit court of the county of Jefferson in the cause of W. C. Robinson, doing business, etc., against J. M. Steverson," etc. The certificate of the clerk, after reciting a complete transcript, further certified that "plaintiff prayed for and obtained an appeal to the present term," etc. One of the modes provided for taking appeals is (Acts 1919, p. 84, § 1[b]) "by giving security for the costs of the appeal, to be approved by the clerk or register or court." It being therein provided that the giving and approval of the security shall "show" that the appeal was taken, it would appear that the security for costs must be looked to in order to determine from which judgment the appeal is taken, and, unless there appears to be an appeal from the judgment upon the motion as distinguished from the original judgment, the trial court's rulings on the motion cannot be considered by the appellate court. McMillon v. Skelton, supra. The appeal in this case must be held to be from the original judgment. This leaves us only to consider the pleadings in the case as shown by the record.
The complaint was in seven counts, claiming on the common counts for merchandise and money had and received and by an added count on an account stated.
To these several counts, besides the general issue the defendant interposed plea 3 as follows:
To this plea the plaintiff demurred, assigning many grounds of demurrer, unnecessary for us to here set out. The trial court considered this plea as setting up a breach of warranty, and we think in this conclusion the trial court was correct. Construing the plea most strongly against the pleader, there is an allegation of purchase of lumber of certain specifications, to be delivered to Central of Georgia Railway at Birmingham, a delivery of a car of lumber in attempted compliance with the terms of purchase, an assumption of control over the lumber by defen...
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... ... for a new trial is not reviewable here. McMillon v ... Skelton, 208 Ala. 693, 95 So. 148; Robinson v ... Steverson, 20 Ala. App. 59, 100 So. 910 ... This ... leaves for review five assignments of error that relate to ... rulings on ... ...
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Ex parte Steverson
...Steverson for certiorari to the Court of Appeals, to review and revise the judgment and decision of that court in the case of Robinson v. Steverson, 100 So. 910. denied. Harsh, Harsh & Harsh, of Birmingham, for petitioner. Rudulph & Smith, of Birmingham, opposed. SOMERVILLE, J. There are ex......