Spurlock v. J.T. Knight & Son

Decision Date11 January 1945
Docket Number4 Div. 318.
CourtAlabama Supreme Court
PartiesSPURLOCK v. J. T. KNIGHT & SON.

John C. Walters, of Troy, for appellant.

John H. Wilkerson, of Troy, and Steiner, Crum & Weil, of Montgomery, for appellee.

Assignment of error 6 is as follows:

'The court erred in not permitting the plaintiff to cross-examine the defendant's witness, Dismuke, showing shipment of a number of carloads of steel, the said cross-examination being in rebuttal to direct testimony elicited from him by the defendant. (Tr. pp. 32, 33.)'

LIVINGSTON Justice.

As a result of a change in appellate procedure, certain preliminary questions of unusual interest to the bench and bar, and presented by this record, were decided and reported near the end of the last term, without a decision on the merits of the case. See 18 So.2d 685 and Blair v. Greene Ala.Sup., 18 So.2d 688. We now proceed to dispose of the cause on the merits.

As stated on former appeal, Spurlock v. J. T. Knight & Son 244 Ala. 364, 13 So.2d 396:

'The one count of the complaint claims damages for the breach of a written contract between the parties.

'To the complaint, defendant interposed two pleas in abatement. In substance the pleas allege that defendant is a foreign corporation, not qualified to do business in Alabama, and was not doing business by agent in Pike County, Alabama (as stated in plea one), 'at the time of the institution of this suit'; (and as stated in plea two) 'at the time of the service of the summons and complaint upon it in this cause.' Neither plea was tested by demurrer, but issue was joined on each.'

The issue thus joined was tried by a jury and resulted in a verdict and judgment for the defendant. Plaintiff appealed.

The only errors assigned or considered in appellant's brief relate to the ruling of the trial court on the introduction of evidence.

As stated on former appeal:

'The written contract, the basis of the cause of action, and which is attached to and made a part of the complaint, and introduced in evidence by the defendant, does not show the doing of business in Pike County as contemplated by the Constitution and statutes.

'But plaintiff insists that he had another agreement with defendant, entered into by parol, subsequent to the making of the written contract.' Appellant's first assignment of error is based on the trial court's action in sustaining appellee's objection to the following question propounded to appellee's witness, Dismuke, on cross-examination 'You were to pay him 50 cents a ton, were you?'

The materiality of the information sought by the question is not apparent. Obviously, from the cross-examination leading up to the question, the matter inquired about relates to scrap material shipped under the written agreement between the parties. This agreement was in evidence and its terms were not in dispute. There was no error in the court ruling.

The second assignment is based on the trial court's action in sustaining appellee's objection to the following question propounded to appellee's witness, Dismuke, on cross-examination: (Q.) 'I understand what you said. On October 8th, 1936, did you get a car load of steel from him?' The information sought was specifically given in later cross-examination as follows: (Q.) 'The next one was on October 8th, 1936, wasn't it? (A.) Yes. (Q.) That was a car load of No. 1 steel that...

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5 cases
  • Almon v. Commission of Ed. of Cullman County
    • United States
    • Alabama Supreme Court
    • January 17, 1957
    ...Ala. 480, 65 So. 397; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645; Wootten v. Austin, 218 Ala. 156, 117 So. 652; Spurlock v. J. T. Knight & Son, 246 Ala. 283, 20 So.2d 525; Miles v. Moore, 262 Ala. 441, 79 So.2d 432; Snellings v. Jones, 33 Ala.App. 301, 33 So.2d 371, certiorari denied 250 ......
  • Hornaday v. First Nat. Bank of Birmingham
    • United States
    • Alabama Supreme Court
    • December 18, 1952
    ...the rulings made in applying it. The most recent case cited holding an assignment too general and indefinite is Spurlock v. J. T. Knight & Son, 246 Ala. 283, 20 So.2d 525, 526. The assignment of error held insufficient in that case is stated in the following language: "The court erred in no......
  • Shelley v. Clark
    • United States
    • Alabama Supreme Court
    • May 22, 1958
    ...of hearsay evidence. (Transcript, Page 17)' Under the rule of our cases this assignment is perhaps too general. Spurlock v. J. T. Knight & Son, 246 Ala. 283, 20 So.2d 525; Almon v. Commission of Education, 265 Ala. 489, 92 So.2d 35, and cases cited. But in any event the ruling of the court ......
  • Harris v. Dial
    • United States
    • Alabama Supreme Court
    • May 22, 1981
    ...any such error was cured when the trial court subsequently allowed cross-examination upon the same subject. Spurlock v. J. T. Knight, 246 Ala. 283, 20 So.2d 525 (1945). Although our examination satisfies us that the record reflects no issue respecting the application of the dead man's statu......
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