Fields v. First Nat. Bank

SOMERVILLE, J. Where the error assigned is the sustention of a demurrer to a plea, an argument asserting merely that the plea sets up so and so, and “is a good plea,” is not sufficient to save the assignment from the implication of waiver by non-insistence. However, defendant had the benefit of anything available under pleas 2 and 5 under other pleas, and their elimination on demurrer could not have been prejudicial. In connection with the testimony of plaintiff’s cashier tending to show his agreement with defendant in that regard, the original deposit slips, showing deposits by the bank to defendant’s credit of the several sums of $1,500 and $750, shown to have been the proceeds of the notes for those amounts executed by him, were competent evidence of the transactions recited, along with the ledger sheets showing the first permanent entry of those items in the form of an account. Diament v. Colloty, 66 N. J. Law, 295, 49 A. 445, 808; 22 Corp. Jur. 887, § 1077. The slips and entries were made in due course by the cashier, or under his immediate supervision, and meet every requirement for admissibility. Code, § 7701; Loveman v. McQueen, 203 Ala. 280, 82 So. 530. The questions propounded to defendant by his counsel, designed to show the date of his return from Sulligent in 1922, and that he had no connection with W. R. Teague’s business after that time, were proper questions; but their exclusion was without prejudice, in view of the fact that both questions were in fact answered afterwards, and had, in substance, been answered on the witness’ original examination. It may be that the weight of the evidence supports the contentions of defendant, but we could not for that reason set aside the judgment of the trial court based on the testimony of witnesses heard viva voce, and being, therefore, in practical effect, the equivalent of a jury’s verdict. We find no error in the record, and the judgment will be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.