Seaboard Air Line Ry. v. Hubbard

DOWDELL, J. The first three assignments of error are directed to rulings of the lower court on motions to quash the writ of attachment, its service, etc. Such rulings are subject to review on appeal only when duly presented by bill of exceptions. — Logan v. Adams Machine Co., 135 Ala. 475, and authorities there cited. The bill of exceptions in the present case fails to set out the motions and the rulings thereon, and the fact that exceptions were reserved to such rulings. It is wholly silent as to- these matters. The suit was commenced by summons and complaint. The claim of damages is based upon an alleged breach of contract for the affreightment of goods, and is therefore an action ex contractu. Subsequent to the suing out of the summons and complaint, the- plaintiff sued out an ancillary attachment under section 558 of the Code. At the first term of the court after the commencement of the [551] suit, the defendant filed pleas in abatement numbered 1 and 2 to the jurisdiction of the court. To these pleas the plaintiff interposed demurrers which were sustained by the court. The assignment of error on the ruling of the trial court on the demurrer to these two pleasi is a joint and single assignment, and unless there was error in sustaining the demurrer to both pleas, the assignment is bad and unavailing. — Mobile, Jackson & Kansas City R. R. Co. v. Bromberg, (Ala.), 37 So. Rep. 395. The plea numbered 2 proceeds upon the theory that the action is in tort, whereas, it is ex contractu. The plea was therefore bad and subject to demurrer. Upon, the trial of the case, the plaintiff was permitted by the court against the objection of the defendant, to prove a statement made by one Roseboro', a conductor of the defendant company, upon the arrival of the train, in which was the car of bananas in question, at Wilmington, N. C.; that the vents of the said car were down when he received the same at Hamlet, N. C., and, also, a certificate to the. «lame effect made by said Roseboro. Both the statement and the certificate related to a transaction that was past, and was not admissible in evidence over defendant’s objection. The trial court erred in the admission of this evidence, and for this error the judgment must be reversed and the cause remanded. Reversed and remanded. McClellan, C. J., Haralson and Denson, J.J., concurring.