Opinion
6 Div. 498.
December 21, 1933.
M. B. Grace and Kelvie Appelbaum, both of Birmingham, for petitioner.
Coleman, Spain, Stewart Davies, of Birmingham, for respondent.
The appeal to the Court of Appeals was by the defendant from a judgment in his favor, denying the plaintiff the right to recover and allowing a recovery by the defendant against the plaintiff on defendant's pleas of set-off. The appeal was on the record, without a bill of exceptions.
The burden of the defendant's complaint here is that the effect of allowing the plaintiff to amend his complaint by adding a count in detinue, and striking the common counts, was to deny him the right to plead set-off and have a judgment over.
The foregoing statement shows that he has no ground to complain. The Court of Appeals might well have affirmed the judgment on the ground that the only possible question open for review was the question of damages, and this cannot be reviewed in the absence of a bill of exceptions setting out the evidence.
The writ of certiorari is denied, and the petition for mandamus is dismissed.
Writ denied; petition dismissed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.