Simmons v. Chesnut
Decision Date | 15 November 1956 |
Docket Number | 7 Div. 255 |
Citation | 265 Ala. 256,90 So.2d 767 |
Parties | W. P. SIMMONS v. Sam L. CHESNUT. |
Court | Alabama Supreme Court |
John R. Robinson, Pell City, for appellant.
Martin & Blakey and S. Eason Balch, Birmingham, for appellee.
This is an appeal from a judgment of the Circuit Court of St. Clair County in favor of appellee--plaintiff below for damages for the alleged trespass of the appellant--defendant and cutting of the timber upon plaintiff's land.
Two assignments of error are presented by the record and they are the only assignments which will be considered. There are other assignments listed in appellant's brief and argued by him; but since Supreme Court Rule 1, Title 7 Appendix, Code 1940, is not complied with in that the assignments of error are not written upon the transcript, the said additional assignments of error will not be considered.
The first assignment of error presented by the record is that the trial court erred in overruling appellant's demurrers to the complaint. Inasmuch as no ruling of the trial court on any demurrer appears in the transcript, there is no ruling from which an appeal would lie presented for review. Moreover, it does not appear from the record that appellant refiled his original demurrer to the complaint as last amended or that appellant filed any demurrer at all to the complaint as last amended. In the case of Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796, 797, we said:
In Berkowitz v. Farrell, 19 Ala.App. 196, 95 So. 916, it is stated:
* * *'
The second assignment of error which appellant has written in the record is that ...
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King v. Smith
...question.--Meador-Pasley Co. v. Owen, 222 Ala. 392, 133 So. 35; McCrae v. Alexander City, 285 Ala. 444, 233 So.2d 229; Simmons v. Chesnut, 265 Ala. 256, 90 So.2d 767. In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true.-......
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Webb v. Gentle
... ... This was not a compliance with Supreme Court Rule 1, Title 7 Appendix, Code 1940, Simmons v. Chesnut, 265 Ala. 256, 90 So.2d 767, and 'failure to substantially comply with the rule requires an affirmance of the judgment appealed from.' ... ...