Opinion
6 Div. 863.
April 26, 1923.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Powell Powell, of Birmingham, for appellant.
Counsel argue the rulings on demurrers to the special counts, but in view of the decision it is not necessary to set out the brief.
Harsh, Harsh Harsh, of Birmingham, for appellee.
There being no bill of exceptions, the appellate court will not review the rulings on demurrer, the giving of the affirmative charge, or ruling on motion for new trial. Supreme Court rule 45 (61 South. vii); Acts 1919, p. 722; Birmingham W. W. Co. v. Justice, 204 Ala. 547, 86 So. 389; Stokes v. Hinton, 197 Ala. 230, 72 So. 503.
There being no bill of exceptions in the record, we must presume that the evidence justified the trial judge in giving the general affirmative charge for plaintiffs on one or more of the common counts. Such being the presumption —
"prejudicial error cannot be imputed to the action of the trial court in overruling demurrers to several special counts of the complaint which imperfectly set up the contract." Barnes v. Marshall, 193 Ala. 94, 98, 69 So. 436, 438; Finney v. Newson, 203 Ala. 191, 82 So. 441.
For the same reasons, the action of the trial court in overruling the motion for a new trial cannot be reviewed.
The appellant wholly fails to show prejudicial error in the rulings complained of, and the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.