Schillinger v. Wickersham

• Decision Date: 05 April 1917
• Docket Number: 6 Div. 183
• Citation: 75 So. 11,199 Ala. 612
• Parties: SCHILLINGER v. WICKERSHAM.
• Court: Alabama Supreme Court

75 So. 11

199 Ala. 612

SCHILLINGER v. WICKERSHAM.

6 Div. 183

Supreme Court of Alabama

April 5, 1917

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by F.L. Schillinger against C.A. Wickersham. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

A. &amp F.B. Latady, of Birmingham, for appellant.

A.G. &amp E.D. Smith and Garber & Garber, all of Birmingham, for appellee.

THOMAS J.

On account of adverse rulings of the court the plaintiff took a nonsuit with bill of exceptions. It is clear from an inspection of the record that on the last ruling on demurrer to the complaint it became necessary for plaintiff to suffer nonsuit. This ruling is not reserved for the decision of the Supreme Court by bill of exceptions, but by an appeal on the record, as in other cases. The statute is as follows:

"If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, ruling, or decision may be reserved for the decision of the Supreme Court by bill of exceptions or by appeal on the record as in other cases." Code 1907, § 3017; Gen.Acts 1903, p. 34.

This statute has been recently construed by our court in the cases of Priebe v. Southern Railway Co., 189 Ala. 427 435, 66 So. 573, and Engle v. Patterson, 167 Ala. 117, 52 So. 397. In Alabama Great Southern Railroad Co. v. Altman, 191 Ala. 429, 67 So. 589, demurrer to the original complaint having been sustained and plaintiff having amended his complaint, it was held that the action of the trial court in sustaining the demurrer to the original complaint was not for review, when the nonsuit with bill of exceptions was taken in consequence of the court's subsequent rulings on the evidence. In Berlin Machine Works v. Ewart, 184 Ala. 272, 63 So. 567, the Engle Case was discussed; and it was declared that where the record shows that the adverse rulings of the court on the pleading--on demurrers to both pleas and replications--were the cause of the nonsuit, such rulings will be reviewed on appeal. In Ex parte Martin, 180 Ala. 620, 61 So. 905, speaking of the necessity of the plaintiff to suffer the nonsuit, the court said:

"In support of this contention it is urged that section 3017 of the Code does not apply, for the reason that it was not made to appear that 'it became necessary for plaintiff to suffer a nonsuit.' It is very true that, in order to revise rulings of courts after voluntary nonsuit, this much must be made to appear by the record proper, or by the bill of exceptions, because it is upon this condition only that the statute authorizes the review on appeal. It does not follow, however, that this must be made to appear in the exact language of the statute, or of any of the decisions construing it. The record is sufficient to authorize the revision if it is made reasonably certain thereby that the nonsuit was rendered necessary in consequence of the adverse ruling." Guiler v. U.S. Cast-Iron Pipe & Foundry Co., 72 So. 498.

It is thus made clear that when a nonsuit is taken with bill of exceptions, and appeal is perfected, there is presented for decision under the statute (Code, § 3017) the "ruling of the court" that made it necessary for the plaintiff to suffer such involuntary nonsuit. That is to say, such nonsuit with bill of exceptions does not present for review all of the rulings theretofore made by the court on the pleadings, or on the introduction of evidence, as the case may be, but only that ruling or rulings going to the right of the plaintiff to proceed in his effect for recovery. Of course, where several adverse rulings, taken together, superinduced the nonsuit, and such fact or necessity is apparent by the record or the bill of exceptions, such adverse rulings will be considered on appeal. Berlin Machine Works v. Ewart, supra, 184 Ala. 279, 63 So. 567.

Does the record in the instant case show that sustaining the demurrer to the complaint as amended went to the "whole right of action," or that it extended only to the mere form in which the action is brought?

The first count of the complaint declared on two promissory notes made, and payable on the dates indicated, with interest at 6 per centum. On October 27, 1913, the defendant demurred on the several grounds assigned, from 1 to 6, inclusive. By the minute entry of this date it is recited:

"Came the parties by their attorneys; by leave of the court first had and obtained, defendant withdraws plea and demurs to the complaint, and plaintiff confesses demurrers 5 and 6."

After this confession of said grounds of demurrer, to the effect that count 1 did not allege that said notes were protested for nonpayment at maturity, nor that defendant had any notice of the nonpayment or of the dishonor of said notes at maturity, on October 27, 1913, plaintiff amended said count by setting out the notes on which suit was brought. Said notes were dated at Atlanta, Ga., were payable to the order of Ben F. Barbour, in amounts indicated, stipulated interest from date at the rate of 6 per cent. per annum, and contained the usual provisions for costs of collection and attorney's fees, together with the clause waiving all homestead and exemption rights that the maker might have under the Constitution or laws of the state of Georgia or those of the United States as against the notes or any renewal thereof. These notes were purported to be signed by "California Consolidated Mines Co., by N.J. Morphy, Pres't," and bore indorsements on the back thereof as follows:

"N.J. Morphy."

"Ben F. Barbour, without recourse."

"T.H. Spencer."

"C.A. Wickersham."

Up to this stage of the pleading, as to count 1, the subsequent taking of the nonsuit presented no question for review, since plaintiff had confessed grounds of demurrer thereto. To count 1 as amended defendant's demurrers were overruled. Thereafter, by leave of the court, plaintiff again amended said count by striking the copies of said notes and indorsements thereon, made a part thereof by the first amendment. Defendant refiled demurrers that were overruled. Thus was count 1 restored to the form in which it was originally filed, and in which it stood when demurrers thereto were confessed by the plaintiff. Later, the court sustained demurrers to the complaint as a whole.

The plaintiff will not be permitted to put the court in error (if error was committed) for sustaining the grounds of demurrer theretofore confessed when plaintiff sought and obtained permission of the court to amend in conformity with the demurrer. In Talley v. Whitlock, 73 So. 976, it was held that, having induced the court to a given course of action, the party inducing the action will not be allowed to predicate reversible error thereon. On the same reason, plaintiff in the instant case, having confessed demurrer, would be prevented from obtaining, by his nonsuit, a review of the ruling of the trial court on the demurrer to count 1, or at least a review of that ruling as to the two grounds of demurrer confessed.

The second count as originally filed reads:

"The plaintiff claims of the defendant $8,000 due by two promissory notes each in the sum of $4,000, made by the California Consolidated Mines Company and payable to Ben F. Barbour, which several notes, before negotiation by said Barbour were indorsed by the defendant, and were by the said Barbour indorsed to the plaintiff. And the plaintiff avers that the said two notes were so indorsed by the defendant for the purpose of lending his credit to the said California Mines Company and to enable it to raise the money on the said two notes, both of which were for value

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