King v. Ben F. Barbour Plumbing & Electric Co.

WALKER, P. J. The plaintiff’s special replication to the plea setting up defendant’s discharge in bankruptcy alleged that, after such discharge, the defendant renewed his obligation to pay the debt sued on by again promising plaintiff that he would pay said debt. The only suggestion made in the argument of the counsel for the appellant as to the sufficiency of that replication is that it fails to set out the terms of the alleged promise with sufficient certainty, but merely avers the same as a conclusion of the pleader. It is questionable whether either of the grounds stated in the demurrer to that replication raises the objection that it was lacking in the requisite certainty in its allegations; but, assuming that the demurrer may be construed as presenting the objection which is stated in the argument, yet to sustain the objection would, in effect, involve the ruling that the pleader should have indicated or set out the evidence to be adduced to prove the making of the promise relied on. The replication plainly averred that, after his discharge in bankruptcy, the defendant made a new promise to pay the debt sued on. As mere matters of evidence need not be pleaded, it was not necessary for the replication to indicate how the making of the promise would be proved.—Quarles v. Campbell, 72 Ala. 64; [642] Burns v. Reeves, 127 Ala. 127, 28 South. 554. The further suggestion made in the argument of the counsel for the appellant in reference to the action of the court below in overruling the demurrer to the special replication to the third plea is subject to a similar criticism. There was no error in overruling the demurrers to the two special replications. When the plaintiff closed its testimony, the defendant himself was the first witness examined in his behalf. At the beginning of his testimony, he referred to a note which he had given to the plaintiff to close his account, and, in that connection, his counsel offered the note in evidence. The plaintiff objected to the introduction of the note in evidence on the sole ground that “it is not the proper time to offer the note.” The defendant excepted to the action of the court in sustaining the objection, and assigns that ruling as error. It is to be observed that the objection went merely to the question of admitting the note in evidence at the time it was offered, and did not invoke a ruling of the court that the paper finally be excluded from the evidence. In support of the objection as made it may have been suggested in argument to the court that the counsel desired an opportunity to inspect the paper, or to cross-examine the witness in regard to it, before the question of its admissibility in evidence should be passed on by the counsel or the court. At any rate, the action of -the trial court on such an objection or -Suggestion cannot properly be made a ground of error. The law does not so hamper a court in its direction of the course of a trial as to put it in fault for yielding to such a suggestion. The order of introducing evidence is generally within the discretion of the trial court, and the exercise of that discretion is not revisable on appeal.—Drum & Ezekiel v. Harrison, 83 Ala. 384, 3 South. 715; Lewis v. State, [643] 88 Ala. 11, 6 South. 755; Towns v. Riddle, 2 Ala. 697; 3 Wigmore on Evidence, § 1867. The ruling on. such an • objection did not indicate that the instrument would be excluded if offered at a time which the court regarded as more appropriate. The failure of the defendant to offer the note in evidence at a later stage of the trial indicates that he valued the exception he had reserved more highly than the evidence he had offered, as he did not venture to afford the court an opportunity to rule on the admissibility of the evidence on its merits. As the bill of exceptions does not disclose any finding of the trial court on the evidence, its action in that regard is not presented for review, because of a noncompliance with the requirements of section 7 of the act to regulate the practice and proceedings of the circuit court of Jefferson county.—Acts 1888-89, pp. 797, 800; Williams, Adm'r, v. Woodward Iron Co., 106 Ala. 254, 17 South. 517; Morey v. Monk, 142 Ala. 175, 38 South. 265; Alosi v. Birmingham Waterworks Co., Infra, 55 South. 1209. Affirmed.