Simmons v. Chesnut, 7 Div. 255

CourtSupreme Court of Alabama
Writing for the CourtSPANN
Citation265 Ala. 256,90 So.2d 767
PartiesW. P. SIMMONS v. Sam L. CHESNUT.
Docket Number7 Div. 255
Decision Date15 November 1956

Page 767

90 So.2d 767
265 Ala. 256
7 Div. 255.
Supreme Court of Alabama.
Nov. 15, 1956.

John R. Robinson, Pell City, for appellant.

Martin & Blakey and S. Eason Balch, Birmingham, for appellee.

SPANN, Justice.

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 [265 Ala. 257] 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:

'The demurrer, if such there was, to the complaint as amended is not incorporated in the record, and, construing the minute entry in the light of the authorities, it fails to show a ruling of the court on the demurrers to the several counts of the complaint; therefore the assignments of error relating to the ruling of the court on

Page 768

demurrers to counts 4 and 5 of the complaint avail nothing. Berger v. Dempster, [204 Ala. 305] 85 So. 392; Alabama Chemical Co. v. Niles, 156 Ala. 295, 47 So. 239; Carland & Co. v. Burks, 197 Ala. 435, 73 So. 10; Central of Georgia R. R. Co. v. Hingson, Ashley, 159 Ala. 145, 48 So. 981; Central of Georgia R. R. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325.'

In Berkowitz v. Farrell, 19 Ala.App. 196, 95 So. 916, it is stated:

'The only demurrer incorporated in the record is the demurrer 'to the complaint and each count thereof,' and this demurrer does not appear to have been refiled to the complaint as amended. Construing...

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2 cases
  • King v. Smith
    • United States
    • Supreme Court of Alabama
    • 16 Marzo 1972
    ...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 Page 248 In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as tr......
  • Webb v. Gentle, 8 Div. 133
    • United States
    • Alabama Court of Appeals
    • 21 Enero 1958
    ...of errors be mailed to you.' 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.' Wetzel v. Hobbs, 249 Ala. ......

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