Opinion
7 Div. 54.
April 8, 1920.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
Joseph Cooper, pro se.
The court ought to have left it to a jury to have assessed the damages. Section 5345, Code 1907. The court erred in sustaining the motion to strike or quash. Section 5367, Code 1907; 136 Ala. 145, 34 So. 233.
J. Wiley Logan, of Birmingham, for appellees.
No brief reached the reporter.
No facts are set out in plaintiff's petition for recusation of the trial judge which are sufficient to disqualify him, either in law or in morals, for conducting the trial of the case; nor was any proof offered to show any bias or prejudice against plaintiff. It was therefore the bounden duty of the judge to sit in the case, and the petition was properly overruled. Ex parte State Bar Ass'n, 92 Ala. 113, 117, 8 So. 768.
The complaint, which was framed by plaintiff himself, while it claims heavy damages for various acts charged against defendants, can hardly be interpreted as stating any specific cause of action, at least not in such a way as to permit an intelligent joinder in issue by defendants. It runs largely to irrelevance and prolixity of detail, and contains much that is purely argumentative, and much that must be pronounced frivolous. While it is true that striking pleadings from the file is a severe remedy, and should not be resorted to except in extreme and palpable cases (Wefel v. Stillman, 151 Ala. 249, 263, 44 So. 203), we cannot say that the trial court abused its discretion in striking this complaint from the file. Cook v. Bell, 177 Ala. 618, 634, 59 So. 273.
Appellant complains that he was not permitted to be heard on the motion thus ruled upon. The record, however, fails to show anything in support of this assignment of error, and we must presume that he was not denied his constitutional right to be heard.
Plaintiff may have a cause of action against these defendants, but to be available it must be presented in some form that is apt for issue and trial.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.