Smith v. Awbrey

PARSONS, J. We do not find it necessary to determine whether the first count in the declaration was good or not. There was a demurrer to it, which was overruled; and if the count was bad there was error, certainly, in overruling the demurrer. But if this were a harmless error, an error which really injured no one, it is according to the established course of this court not to [66] reverse for it. In this view of the ease, the only difficulty is in reconciling this with the case of Porter v. Nash, 1 Ala. 452. In that case there was a special count on a lost promissory note, and the common money counts. The defendant demurred to the special count and pleaded in bar to the others. The demurrer was overruled below, erroneously, as this court held, and therefore the judgment was reversed. If it did not clearly appear in that case, that the defendant below was not injured by the error, then that case is distinguishable from this. In this case it appears clearly that if the demurrer had been sustained, or the count never filed, the plaintiff below should have recovered, under his other counts, the precise sum which he did recover. I therefore think the judgment should not be reversed; and in this I am sustained, I think, by the principle of several decisions of this court, since the case of Porter v. Nash. It has been determined that although a demurrer to a plea was improperly .sustained, yet as it appeared that the defendant had the benefit of the facts stated in it under another plea, he could not insist on the error, as no real injury was done him.—4 Ala. 230; 8 ib. 161; 3 ib. 942; 17 ib. 699. It is not necessary now to determine how far Porter v. Nash, and Bell v. Moore, 9 Ala. 823, are consistent, in other respects, with the Branch Bank at Mobile v. Tillman, 12 ib. 214; 17 ib. 813, and the Bank of Mobile v. Williams, 13 ib. 546, in which I fully concur. The cases in 13 ib. 545, and 1 ib. 454, show that in this case the plaintiff below could recover upon the common counts, as his note was destroyed. The owner of the note gave it to one of the makers to the end that another note might be made, which Avas not done. We are entirely satisfied that this did not discharge either of the makers; and Ave are satisfied that there is no injurious error in the charge of the Circuit Court. The judgment is affirmed. CHILTON, J. I do not think that Ave are relieved from in-A'estigating the sufficiency of the first count in this declaration, upon the ground that the evidence set out in the bill of exceptions clearly sIioavs that the plaintiff is entitled to recover under the common counts, to the same extent AA’hich he seeks to recover upon the first, Avhich is a special count. In the first place, the67 bill of exceptions docs not state that tbe evidence set ont in it is all that was offered, so that for this reason, we cannot undertake to say that tbe defendant below bas not sustained any injury. In tbe second place, if tbe demurrer was improperly overruled to tbe count and judgment had been taken upon it for tbe refusal of the defendant to plead over, be would clearly have been entitled to a reversal; bis pleading over is no waiver of any matter covered by tbe demurrer, but tbe statute expressly reserves to him in such case tbe right to assign the overruling of tbe demurrer for error. — Clay’s Dig. 884, § 121. In the last place, conceding tbe doctrine that the party can take no advantage of an error which works no injury to him, yet I bold that we must infer the party was injured, as a legal deduction, where be is forced to trial upon an insufficient declaration to which he properly demurred, but which demurrer was overruled. Tbe cases are exceedingly numerous which bold that judgment should not be set aside, on account of charges of the court admitting testimony and overruling pleas, when no injury did or could result to the party; so also where from the whole record it is manifest a party can never succeed, he may not reverse; but I have found no case in our reports, nor have I ever met with one which holds that the appellate court will not reverse in favor of a party, as against whom the court has improperly overruled the demurrer to the declaration, because it may appear from the evidence that the plaintiff was entitled to recover under counts which are unobjectionable. I am reluctant at all times to differ from my brethren, but as I think the reasoning of the opinion and the ground upon which it is rested make a new application of the doctrine that the absence of injury renders error unavailing, and perhaps will lead to consequences not easily foreseen, I feel constrained to record my dissent.