McCrae v. Alexander City

LIVINGSTON, Chief Justice. Plaintiff, in the Circuit Court of Tallapoosa County, here appeals from a judgment of voluntary nonsuit, with bill of exceptions, on account of an adverse ruling of the trial court on pleadings. Smith v. Louisville & N. R. Co, 208 Ala. 440, 94-So. 489; Title 7, Sec. 819, Code 1940, Recompiled in 1958. Appellant contends by assignment of error that the trial court erred in sustaining [445] defendant’s demurrer to his complaint as last amended. The minute entry recites that the plaintiff in open court took a nonsuit, with hill of exceptions, on account of the adverse ruling of the court on the pleadings in the cause. The record shows that a demurrer was refiled to the complaint as amended. However, no judgment appears in the record sustaining the demurrer to the complaint if it was the intention of the minutes entry to refer to such pleading. This mere reference to a ruling on the demurrer is insufficient to support the assignment of error. In order to review a ruling on demurrer there must he in the record a formal judgment of the court in that respect. Homan v. State of Alabama ex rel. Smith, 265 Ala. 17, 89 So.2d 184 (7), and cases cited. There being nothing in the record properly inviting review, the judgment of non-suit from which this appeal is taken is affirmed. Affirmed. LAWSON, MERRILL, HARWOOD and MADDOX, JJ., concur.