Shepherd v. Parker

McCLELLAN, J. — There was no submission on motion to dismiss this appeal; hence the reference thereto in brief is a mere suggestion, upon which this court cannot act. The point that the sureties on the defendant’s appeal bond from the justice’s to the circuit court should have joined in the appeal to this court cannot be taken ex mero motu, since the objection was waived by the submission on the merits. —See Sellers v. Smith, 143 Ala. 566, 39 South. 356. The demand upon appellant to deliver the possession was properly given by Parker, Brainard’s grantor, pending the life of the alleged lease of the premises. — Kennedy v. Hitchcock, 4 Port. 230. The record does not disclose an exception to the action of the court in allowing the amendment, adding the expression “for the use of Mark D, Brainard.” Hence that action cannot be reviewed. Brainard, the purchas [496] er from Parker, could not maintain the suit, and therefore it was properly instituted by Parker, the lessor.—Dwine v. Brown, 35 Ala. 596. There was testimony presented from which the court below (the trial was without jury) might infer the fact that appellant occupied the premises in question with and under her brother, whose, relation to Parker was that of tenant. —Russell v. Irwin, 38 Ala. 44. The errors assigned are without merit, and the judgment is affirmed. Affirmed. Tyson, G. J., and Dowdell and Anderson, J J., concur.