White v. Whatley

• Decision Date: 20 December 1900
• Citation: 128 Ala. 524,30 So. 738
• Parties: WHITE ET AL. v. WHATLEY. [1]
• Court: Alabama Supreme Court

30 So. 738

128 Ala. 524

WHITE ET AL. v. WHATLEY. ^[1]

Supreme Court of Alabama

December 20, 1900

Appeal from Clay county court; W. J. Pearce, Judge.

Action by White & Spigener against M. W. Whatley. Judgment for defendant. Plaintiffs appeal. Reversed.

This action was instituted to recover the statutory penalty against the probate judge of Clay county for charging excessive fees for the record of certain mortgages. The judgment entry in the court below, so far as necessary to an understanding of the opinion, is as follows "Defendant's counsel then filed demurrers to the amended complaint, which were considered by the court, and overruled. The defendant then filed pleas to which the plaintiffs filed demurrers, and the defendant's pleas and plaintiffs' demurrers were duly considered by the court and the demurrers to plea No. 4 were overruled by the court. The plaintiffs then filed replication, to which the defendant demurred, and, after due consideration by the court, the demurrers to the replication were sustained by the court. Thereupon the plaintiffs refused to plead further, and judgment was rendered in favor of the defendant." Then follows judgment for defendant.

W. M Lackey and D. H. Riddle, for appellants.

Knox Bowie & Dixon, for appellee.

SHARPE J.

It has several times been decided by this court, in effect, that action of the trial court in sustaining or overruling a demurrer to pleading can be made to appear, so as to be assignable for error, only by an entry of record sufficiently formal to constitute a judgment upon the particular issue joined on the demurrer, and that a mere recital in the minutes that the demurrer was sustained or overruled is insufficient for that purpose. Crawford v. Crawford, 119 Ala. 34, 24 So. 727; Mercantile Co. v. O'Rear, 112 Ala. 248, 20 So. 583; McDonald v. Railway Co. (Ala.) 26 So. 165; Improvement Co. v. Dubose (Ala.) 28 So. 380; Carter v. Long (Ala.) 28 So. 74. Tested by the rule as declared in the authorities referred to, the recitals in this record respecting demurrers to pleas and replications do not show a disposition of those demurrers, and consequently do not support the assignments of error based on the assumed disposition of those demurrers.

The judgment purports to have been rendered against the plaintiff in consequence of his refusal to further plead. The propriety of that action depends upon whether in the then existing state of the...