White v. Whatley

SHARPE, J. It has several times been decided by this court in effect that action of the trial court in sustaining or overruling a demurrer to pleading can be made to appear so as to be assignable for error only by an entry of record sufficiently formal to constitute a judgment upon the particular issue joined on the demurrer and that a mece recital in the minutes that the demurrer was sustained or overruled, is insufficient for that purpose. — Crawford v. Crawford, 119 Ala. 34; Jasper Mev. Co. v. O'Rear, 112 Ala. 248; McDonald v. Ala. Midland R’y. Co., 125 Ala. 165; Bessemer Land & Imp. Co. v. Dubose, 127 Ala. 380; Carter v. Long, 124 Ala. 330. Tested by the rule as declared in the authorities referred to the recitals in this record respecting demurrers to pleas and replications do not show a disposition of those demurrers and consequently do not support the assignments of error based on the assumed disposition of those demurrers. The judgment purports to have been rendered against the plaintiff in consequence of his refusal to further plead. The propriety of that action depends upon whether in the then existing state of the pleadings it was incumbent on the plaintiff to plead further. Five pleas and demurrers to each of. them were on file. None of those demurrers were disposed of by the court but the plaintiff filed replications to the fourth plea and that action doubtless had effect to waive his demurrer to that plea. But with his replications interposed to the fourth plea and the demurrers to those replications, as well as the demurrers to the other pleas remaining undisposed of, the plaintiff had the right to await the. court’s determination of the issues of law so raised before pleading further. Therefore his refusal to plead further did not place him in default or authorize the. rendition of judgment against him. The judgment must be reversed and the cause remanded .