Wheeler v. Fuller

• Decision Date: 07 May 1912
• Citation: 4 Ala.App. 532,58 So. 792
• Parties: WHEELER ET AL. v. FULLER.
• Court: Alabama Court of Appeals

58 So. 792

4 Ala.App. 532

WHEELER ET AL. v. FULLER.

Court of Appeals of Alabama

May 7, 1912

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Action by Asa B. Fuller, as register in chancery, against Sallie C Wheeler and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. T. L. Cofer, of Cullman, for appellants.

J. B Brown, of Cullman, for appellee.

PELHAM J.

The appellee, as register in chancery, brought suit in the circuit court, for the use and benefit of one J. I Armstrong, against the appellants, as obligors on an appeal bond executed by appellants in a case brought by appeal from the chancery court of Cullman county to the Supreme Court of Alabama, wherein the said Armstrong was the appellee. The chancellor, prescribing the sum under section 2874 of the Code of 1907, fixed the amount of the bond in the sum of $300, and the bond was given in that amount and conditioned to pay such judgment as the Supreme Court might render "and all such costs and damages as any party aggrieved may sustain by reason of the wrongful appeal and suspension of the execution of said decree." The plaintiff averred a breach of the condition of the bond, in that the principal in the bond, who prosecuted the appeal, failed in the appeal, and claimed $100 damages as attorney's fees as an expense or damage incurred. The case was tried on issues formed under pleas of the general issue, no consideration, and payment.

The appellants make numerous assignments of error, but in brief filed insist only that no recovery can be had, because the penalty was paid in full before suit was brought on the bond, and that "the demurrers to the complaint should have been sustained, and the court erred in not ruling upon the evidence and in giving the general charge for the plaintiff."

The other errors assigned, but not discussed or insisted upon in brief, are waived and will not be considered. Bay City Lumber Co. v. McIntyre Lumber Co., 1 Ala. App. 607, 55 So. 1033. There are several demurrers assigning different grounds of demurrer to the complaint; but the assignment of error made here going to the court's ruling on the demurrers, "that the court erred in overruling defendants' demurrers to the complaint," and the insistance made by brief, is only general.

It would appear that the principal ground of demurrer set up, and which we suppose appellants seek to insist upon, is to the effect that the bond sued upon is shown to be made payable to Fuller, as register, instead of to Armstrong, the original complainant. If the bond, under the provisions of section 2874 of the Code, should have been made to Armstrong, and is not a statutory bond, still it would be good as a common-law obligation; and the action for recovery for a breach is properly brought by Fuller, as register, for the use of Armstrong. Babcock v. Carter et al., 117 Ala. 575, 23 So. 487, 67 Am. St. Rep. 193.

We cannot be sure, from the general assignment of error on the record and the statement, equally general, made by way of insistence in brief of counsel, that the ground of demurrer we have discussed is the ground intended to be assigned and insisted upon; but, however that may be, the assignment and insistence are too general to raise the question of the court's ruling on the demurrers, as some of the grounds assigned are manifestly bad, and some are but general demurrers. Under the assignment made, if one ground of demurrer was properly overruled, the assignment is not sufficient, and the court cannot be put in error for its ruling. Ætna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L. R. A. (N. S.) 252; Fitts v. Ph nix Co., 153 Ala. 635, 45 So. 150; Kenan v. Lindsay, 127 Ala. 273, 28 So. 570; Pearson v. Adams, 129 Ala. 169, 29 So. 977; Ashford v. Ashford, 136 Ala. 633, 34 So. 10, 96 Am. St. Rep. 82; Ferrell v. Opelika, 144 Ala. 135, 39 So. 249; Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Thompson v. N., C. & St. L. Ry. Co., 160 Ala. 590, 49 So. 340.

The bare statement of counsel in brief that the court erred in not ruling on the evidence is not a sufficient insistence to authorize a consideration of this...