Opinion
6 Div. 572.
April 16, 1935. Rehearing Denied June 4, 1935.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action on promissory note by Russ Daniel against Julius Ormand. From a judgment for defendant, plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in Daniel v. Ormand (6 Div. 806) 163 So. 362.
M. B. Grace, of Birmingham, for appellant.
The appeal was taken within time. Code 1923, § 13; Obear-Nester Glass Co. v. Mobile Drug Co., 208 Ala. 618, 95 So. 13; Cox v. Hutto, 216 Ala. 232, 113 So. 40; Stewart v. Keller, 197 Ala. 575, 73 So. 89; Southern Pickle V. Co. v. Webb, 19 Ala. App. 22, 94 So. 837; 3 C.J. 1182. Where the court erred in rulings on pleadings, but there was no nonsuit and trial was had on the merits, and, though there was no bill of exceptions, instructions were sent up as part of record, and these indicated that the rulings were prejudicial, the appellate court will reverse, notwithstanding rule 45. Henderson v. Tennessee C., I. R. Co., 190 Ala. 126, 67 So. 414; Fenner Beane v. Olive, 226 Ala. 359, 147 So. 147; Schwartz M. Co. v. Bradley R. E. I. Co., 220 Ala. 295, 125 So. 26; Black v. Sloss-S. S. I. Co., 202 Ala. 506, 80 So. 794 (Dissenting opinion); Police F. I. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156.
Taylor Higgins and Chas. M. Hewitt, all of Birmingham, for appellee.
The appeal, not having been taken within six months, will be dismissed. Code 1923, § 6127; McKenzie v. Jensen, 200 Ala. 191, 75 So. 939; Gibson v. Farmers' Bank, 218 Ala. 554, 119 So. 664; Sims v. Paeske, 223 Ala. 41, 134 So. 660. The giving of the affirmative charge will be presumed on appeal to have been proper when appellant does not bring up the entire evidence. Clardy v. Walker, 132 Ala. 264, 31 So. 78; Wolf v. Do, 150 Ala. 445, 43 So. 856; Gambill v. Cooper, 159 Ala. 637, 48 So. 691; Odum v. Coldwell, 21 Ala. App. 74, 105 So. 398. Where the verdict and judgment might have been rested on the plea of the general issue or on a plea of the statute of limitations, rulings on demurrer to pleas setting up other grounds of defense will not be reviewed, in the absence of a bill of exceptions and the oral charge of the count from the record. Street v. Treadwell, 203 Ala. 68, 82 So. 28; Black v. Sloss-S. S. I. Co., 202 Ala. 506, 80 So. 794.
With us, the word "month," unless otherwise expressed, means a "calendar month" (Code 1928, § 9; Sovereign Camp, W. O. W., v. Reed, 208 Ala. 457, 94 So. 910), which, according to Webster's New International Dictionary, means "the time from any day of any of the months as adjusted in the calendar to the corresponding day (if any; if not, to the last day) of the next month."
It was requisite that the appeal in this case be taken "within six months from the rendition of the judgment" (Code 1928, § 6127); otherwise, it would be our duty to dismiss it ex mero motu. McKenzie v. Jensen, 200 Ala. 191, 75 So. 939; Code 1928, § 7318. And, of course, the "judgment" may be, as here, that refusing appellant's motion for a new trial. Code 1928, §§ 6088, 6433.
The judgment overruling appellant's said motion was rendered on April 22, 1933. Appellant instituted his appeal by "giving security for the costs of the appeal" (Code 1928, § 6101) on October 23, 1933; October 22, 1933, falling on Sunday. Code 1928, § 13. We hold the appeal was taken within the time prescribed by law. Doyle v. First National Bank, 131 Ala. 294, 30 So. 880, 90 Am. St. Rep. 41.
The appeal is on the record proper, without bill of exceptions.
The general affirmative charge was given at appellee's request.
Numerous pleas, affording a complete answer to the complaint, were interposed and no demurrer lodged against same, or any of same.
The only questions presented properly for our consideration are those arising out of the action of the trial court in overruling appellant's demurrers to appellee's pleas 6 and 8.
As said by Mr. Justice Thomas, for the majority of the Supreme Court in the case of Black v. Sloss-Sheffield Steel Iron Co., 202 Ala. 506, 80 So. 794, so we repeat, as applicable here (Code 1923, § 7318): "In the instant case, no nonsuit having been taken because of adverse rulings on the pleadings, and [the cause] having proceeded to trial on the merits, the general affirmative charge, given for defendant on its [his] written request, being the only charge requested and given, was, for aught that the record discloses, given because of the failure of evidence to support the complaint. The same presumption would be indulged as to no evidence being offered in support of any of defendant's pleas, and no prejudicial error as to any ruling on demurrer to pleas. Harrell v. Hooks [ 16 Ala. App. 571], 80 So. 145."
And see Street v. Treadwell et al., 203 Ala. 68, 82 So. 28.
The judgment is affirmed.
Affirmed.