[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 649 Judgment in this cause was rendered October 21, 1926.
The bill of exceptions was presented to the presiding judge April 18, 1927.
The motion for a new trial had been made November 17, 1926.
Appellee, movant in this court, concedes that in the circuit court the motion for a new trial was regularly continued from time to time until January 8, 1927. On and after that date the record shows the following orders:
"Jan. 8/27. Passed to Jan. 15/27.
"Jan. 15/27. Passed to Jan. 22/27.
"Jan. 22/27. Argued, submitted, and taken under advisement.
"Feb. 7/27. Motion overruled."
The subsequent history of this cause, down to the judgment of this court in the case of Ex parte Adams, 216 Ala. 353,113 So. 513, is shown by the report of that case. After the decision in Ex parte Adams, supra, both parties to this cause, by motions addressed to the circuit court, proposed amendments of the proper record, with this result, as we understand the record in its present shape, to wit: The order of January 22, 1927, is eliminated, with result that appellant's motion suffered a discontinuance, which has in no wise, expressly or by implication, been waived by appellee, and as further result, according to the decision in Ex parte Adams, supra, the court lost jurisdiction of the motion, and its entry of February 7, 1927, was without its power, void, and of none effect. It results that, according to the face of the proper record, the time in which a bill of exceptions might be filed began to run from the date of the judgment in the main cause, viz. October 21, 1926, more than 90 days before the presentation of the bill of exceptions, which, for that reason, must, on appellee's motion, be stricken. Stallings v. Clark, ante, p. 31,117 So. 467.
But the concluding recital of the bill of exceptions now before the court is as follows:
"Said motion" — meaning the motion for a new trial — "was duly continued until the 8th day of January, 1927, at which time it was submitted and taken under advisement by the court, and held under advisement until the 7th day of February, 1927, at which time the court overruled the motion, to which action of the court the defendant reserved an exception."
If this recital be now accepted as a true history of the motion for new trial, the motion to strike the bill must be overruled. Stallings v. Clark, supra.
Where there is a conflict between the record proper and the bill of exceptions, the former controls as to matter which should appear of record proper, and the latter controls as to matter which should appear by *Page 652 a bill of exceptions. Central of Georgia R. Co. v. Gross,192 Ala. 360, 68 So. 291; National Bank v. Baker Hill Iron Co.,108 Ala. 638, 19 So. 47; Hurst v. Bell, 72 Ala. 336. That the order or judgment of the trial court on the motion for new trial may serve as the basis of appeal it must appear upon the proper record. Stallings v. Clark, supra. The judgment on the motion in this case appears upon the record proper; but that same record discloses the fact that the court had at the time of such ruling lost jurisdiction of the motion — this for reasons stated in Ex parte Adams, to which we have referred above. To permit the concluding recital of the bill of exceptions quoted above to serve now as the basis of appeal would be to allow the bill of exceptions to contradict and supplant the record proper in respect of a matter which must necessarily appear upon the record proper. That, it hardly seems necessary to say, cannot be done.
It follows that the motion to strike the bill of exceptions must be granted.
As to error assigned on the pleadings:
The original suit was brought May 14, 1925. The suit is for salary alleged to be due from defendant (appellant) to plaintiff. On October 20, 1926, plaintiff amended his complaint by adding counts 9, 10, 11, B, and C. Count 9 claims salary for the "entire 12 months of the year 1925," thus, it will be observed, extending his claim so as to include salary alleged to have been earned beyond, or after, suit brought — this in addition to salary alleged in the count to be due before suit brought. The objection to the count on account of its claim post litem was taken by demurrer, which was overruled, and that ruling is now assigned for error. Apart from the claim of damages accrued subsequent to suit brought, the count alleged a good cause of action, and the rule is well settled and oft repeated that demurrer is not the proper mode of objecting to items of damages claimed less than the whole. That must be done by motion to strike, objection to evidence, or by request for special instruction to the jury. Treadwell v. Tillis, 108 Ala. 262,18 So. 886; Lurie v. Kegan-Grace Co., 209 Ala. 339,96 So. 344; 4 Michie, p. 668, § 122, where the cases are cited. So of count 11 of the amended complaint.
The argument against count B, demurrer to which was overruled, proceeds upon the theory that the contract of employment by which defendant employed plaintiff as president for a term of years to begin in the future was void under subdivision 1 of the statute of frauds, section 8034 of the Code, because not in writing, is refuted by the language of the count, which alleged that "said contract was in writing."
Count 8, filed by way of amendment May 17, 1926, claimed damages in part accruing subsequent to suit brought. The demurrer to plea 4 as an answer to count 8 was properly sustained. The plea does not deny that the contract of employment for breach of which plaintiff sued was subscribed by some person — defendant's representative, the demurrer phrases it — thereunto lawfully authorized in writing. Code, § 8034.
It is necessary only to say of count 2, to which defendant demurred, that it follows the Code form. Code, § 9531, form 10.
The judgment must be affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing.
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