Thomas v. White
| Decision Date | 11 March 1943 |
| Docket Number | 8 Div. 212. |
| Citation | 12 So.2d 567,244 Ala. 128 |
| Parties | THOMAS v. WHITE et al. |
| Court | Alabama Supreme Court |
W. A. Barnett and O. B. Hill, both of Florence, for appellant.
Bradshaw & Barnett, of Florence, for appellees.
Plaintiff sued to recover damages suffered, as he alleges in his complaint, on account of the negligence of defendant J. R White in removing his house under contract with the State highway construction, and White's bondsman is also made party defendant. Presumably, on account of adverse ruling on demurrer to his complaint plaintiff moved for a non-suit and appealed. The point is made by appellees that the judgment entered is not such a final judgment as will support an appeal, and of consequence the appeal should be dismissed.
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."
This order "put the case out of court," and constitutes a final judgment. Wood v. Coman, 56 Ala. 283, cited approvingly in Martin v. Alabama Power Co., 208 Ala 212, 94 So. 76. This is in accord with current authorities. Freeman on Judgments, 5th Ed., p. 37; 18 Words and Phrases Perm.Ed., p. 423; 2 Am.Jur. p. 867.
The appeal is not therefore due to be dismissed.
The assignments of error and argument based thereon relate to the alleged ruling of the court sustaining demurrer to plaintiff's complaint.
The point is made by appellees that the minute entry discloses no sufficient judgment of the court on demurrer which justifies a review thereof. We feel impelled to hold the point is well taken. The only matter relating to the court's ruling on demurrer is the following: .
A very similar entry was involved in Tallassee Falls Mfg. Co. v Western Railway of Alabama, 128 Ala. 167, 29 So. 203, 204, and the holding was that "under the rule established by several decisions of this court upon the effect of such recitals the appellant can take nothing by assignments of error based upon them." And in Alabama National Bank v. Hunt et al., 125 Ala. 512, 28 So. 488, 489, speaking of a similar minute entry, it was observed that "the mere copying into what purports or was intended to be a judgment entry, of memoranda made on the docket by the judge, such as 'plaintiff's demurrer to 4th, 5th and 6th pleas...
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