Wilson v. Owens Horse & Mule Co.

THOMAS, J. The appellant was defendant below and prosecutes this appeal on the record proper — there being no bill of [468] exceptions and no charges set out in the record. The only errors assigned are, that the court erred in sustaining demurrers to certain special pleas. Assuming, without deciding, that the court did err in the particulars mentioned, it is not made to appear that the error was probably injurious to the defendant, which is necessary, under the new rule of our Supreme Court (rule 45 as published in 175 Ala. xxi, 61 South, ix), before we would be authorized to reverse the case. ' Under this rule, injury is no longer presumed, but it must affirmatively appear from the record. In order to make it appear that injury resulted from error in sustaining demurrers to special pleas, it should appear, either from charges in the record, or by bill of exceptions, or in some way, that appellant introduced, or offered to introduce, some evidence tending to support said pleas; otherwise it will be presumed on appeal that appellant could not have proved his pleas if the demurrers to them had been overruled, hence that there was no injury, if error, in the action of the lower court in sustaining the demurrers. This we judge to be the rational interpretation of the holdings of our Supreme Court in construing the rule mentioned.—Rule 45, supra; Henderson v. Tenn. Coal & Iron Co., 190 Ala. 126, 67 South. 414. It follows that the judgment appealed from must be affirmed. Affirmed.