Dean v. Witherington

BRICKELL, C. J. This action, in which the appellee was plaintiff, is founded upon a suretyship in writing for the payment of costs, executed by the appellants in accordance with the statutes then of force, (Code of 1886, §§ 398-417), upon the institution of a contest of the election of the appellee to the office of cleric of the circuit court of Conecuh ; and the complaint assigns as breaches of the writing, that the contestant, the appellant Dea,n, was unsuccessful in the contest, and had failed to pay the costs thereof. The assignments of error are founded on a bill of exceptions taken to the rulings of the trial court. 1. • The first assignment relates to the admission in ■ evidence of a book purporting, or claimed to be, a record book kept by the judge of probate, containing the memorial of the proceedings had and judgment rendered on the contest of the election. But there was no objection taken to its admission on the trial in the court below. There was- no more than an expression of a purpose, at a future time in the course of the trial, ‘ ‘to lay a predicate,” as it is termed, for a motion to exclude it, and to its admission no exception was reserved. Objection to the admissibility of evidence, not raised in the trial court, cannot be insisted on in this court. — Thompson v. Lee, 31 Ala. 292; 3 Brick. Dig. 443, § 565. 2. The third, fifth and sixth assignments of error are not insisted on in the argument of counsel for appellants, and it has long since been the settled practice of this court, in civil cases, to notice only those assignments of error which are insisted on in the argument of counsel. — 1 Brick. Dig. 102, § 285; 3 Brick. Dig. 40. § 125. [576] 3. The second and fourth assignments relate to the admission of evidence of the fees of the judge of probate on the contest. The precise objection to the admission of the evidence, in the first instance, was, that the judge had not, as required by section 3686 of the Code of 1886, (Code of 1896, § 1376), kept an itemized account of his official services. That section does not require the judge to keep such itemized account. The requirement is, that he shall make out such an account before his fees are .due and collectible. If the objection to the admission of evidence is specific, and is not well taken, there is no error in overruling it. The point of objection now urged to the admissibility of the evidence is, that the judge did not keep constantly in his office a book in which was entered all the fees received by him, stating for what and from whom received, as required by the statute, (Code of 1886, § 3678 ; Code of 1896, § 1366), but that he had entered the fees in two several books. There is no force in the objection, for the obvious reason that these ‘fees had not been received by the judge — one of the objects of the present suit is their recovery. We find no error in the record, and the judgment must be affirmed. Affirmed.