Stephens v. Stephens
| Decision Date | 14 July 1966 |
| Docket Number | 5 Div. 813 |
| Citation | 280 Ala. 44,189 So.2d 782 |
| Parties | Pearl Lindsey STEPHENS v. William C. STEPHENS et al. |
| Court | Alabama Supreme Court |
Hooton & Hooton, Roanoke, for appellant.
John W. Johnson, Jr., Lanett, for appellees.
Appellant sued appellees for libel. The complaint, as last amended, contained nine counts. Appellees' amended demurrer to the amended complaint, and to each count thereof, separately and severally, was sustained generally. In so ruling, the trial court did not specify which of the twenty-five grounds of the amended demurrer it considered to be good as to each of the counts. Appellant declined to plead further and, because of the ruling on the demurrer, moved for a nonsuit. The motion was granted. This appeal followed.
Before discussing the merits, we dispose of appellees' motion to dismiss the appeal. The motion is grounded on the lack of a final judgment to support the appeal. Our conclusion is that the motion is due to be denied.
The question is whether the following is a final judgment, viz.:
'It is therefore, ordered and adjudged by the Court that the defendants go hence without day and have and recover of plaintiff all costs in this cause created, for the recovery of which, let execution issue.'
A similar order has been held to be a final judgment which will support an appeal. See: Cooper v. City of Fairhope, 263 Ala. 619, 621, 83 So.2d 321; Davis v. Evans, 261 Ala. 548, 550, 74 So.2d 705, 48 A.L.R.2d 740; Thomas v. White, 244 Ala. 128, 129, 12 So.2d 567, 569. The judgment in the last cited case and the one now before us are almost identical. There, it was said:
'After reciting that plaintiff moved for a non-suit on account of adverse ruling of the court, the minute entry proceeds: 'It is therefore considered and adjudged by the court that the defendant go hence and have and recover of the plaintiff all costs incurred in this prosecution, for which let execution issue.'
The motion to dismiss the appeal is denied.
There are twenty-three assignments of error. However, only those challenging the ruling on the demurrer, which superinduced the nonsuit, can be considered. Code 1940, Tit. 7, § 819; Almon v. Commission of Education of Cullman County, 265 Ala. 489, 491(5), 92 So.2d 35; Carter v. City of Gadsden, 264 Ala. 544, 547(3), 88 So.2d 689.
Each count of the complaint is tested by each ground of the demurrer; and if any ground of the demurrer is good as to any count of the complaint, the sustaining of the demurrer was not error. The effect of assigning as error the ruling sustaining the demurrer generally is to charge that none of the grounds of the demurrer is good as applied to at least one count of the complaint. See: Whatley v. Alabama Dry Dock and Shipbuilding Company, 279 Ala. ---, 186 So.2d 117.
We are at the conclusion that at least one ground of the demurrer is good as to count 1 of the complaint.
Count 1 is as follows:
'Plaintiff claims of the Defendants One Hundred Thousand Dollars, damages for falsely and maliciously publishing of and concerning her an affidavit before Hon. O. D. Alsobrook, Probate Judge of Chambers County, Alabama on towit, July 2, 1963 the following matter with intent to defame the Plaintiff, towit, that the Plaintiff, Pearl Lindsey Stephens was insane and that she be placed in the Alabama Bryce Hospital as a patient.'
Appellant apparently takes the position that count 1 is not demurrable because it follows the form prescribed for libel by Code 1940, Tit. 7, § 223, Form 17. It is our view that count 1 does not meet the requirements of Form 17. It has been held that this form requires that the defamatory words be set out in haec verba. See: Cleveland v. Cleveland, 263 Ala. 530, 532, 83 So.2d 281. This is not done in count 1, and there is a ground of demurrer specifically pointing out this defect.
There is no occasion to determine whether grounds of the demurrer are good as to the other counts.
Motion to dismiss the appeal denied.
Affirmed.
All the Justices concur.
ON REHEARING.
Rehearing denied.
One further consideration of this appeal, I am in disagreement with the original opinion of the court in some particulars but am in agreement in others.
On original deliverance, the court held that, by her assignments of error, plaintiff has asserted that the trial court erred in overruling the demurrer to every one of the counts of the complaint. There were nine counts. The first assignment of error recites:
The only other good assignments of error are 20 and 21. They are to the same effect as assignment 1. It is not certain that assignment 20 is a good assignment.
By the first assignment, plaintiff asserts that the court erred in sustaining the demurrer to all nine counts. This is a joint assignment. Plaintiff has said that the court erred as to all counts jointly. This means that plaintiff, by her assignment of error, has undertaken to prove that all nine counts are good counts and that not even one of the nine counts is insufficient against any ground of demurrer. To sustain her assignment of error, plaintiff must demonstrate that all nine counts are good against all grounds of demurrer. If plaintiff desired to have a separate consideration of the ruling sustaining the demurrer to count 1, then plaintiff should have made a separate assignment of error asserting that the court erred in sustaining the demurrer to count 1. The same procedure would be required to obtain a separate consideration of the ruling as to each of the remaining counts.
Assignments 20 and 21 are subject to the same consideration and result as the first assignment. So, if the court was correct in sustaining the demurrer to count 1, then plaintiff's assignments of error are not well taken and the judgment is due to be affirmed.
I agree with the holding that if any single count is subject to any single ground of demurrer, then the plaintiff's assignments of error are not well taken. Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 150 So.2d 365.
The next step is to decide whether any count is subject to any ground of demurrer. On original deliverance, the court held that count 1 is bad against the ground that the defamatory words are not set out In haec verba in this count.
Form 17, § 223, Title 7, Code 1940, as here pertinent, recites:
'The plaintiff claims of the defendant _ _ dollars, damages for falsely and maliciously...
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White v. Brookley Federal Credit Union
...of the opinion, supra, is to overturn some of our pronouncements in Butler v. Olshan, 280 Ala. 181, 191 So.2d 7, and in Stephens v. Stephens, 280 Ala. 44, 189 So.2d 782, wherein these (and other) cases hold that by assigning error that the circuit court erred in sustaining demurrer, the app......