DAVIS v. STANLEY

(94 South. 185) DAVIS v. STANLEY. (8 Div. 900.) (Court of Appeals of Alabama. Oct. 24, 1922.) Appeal and error &wkey;>l97(3) — Refusal of affirmative charge held not error in absence of objection to evidence on ground of variance. Where the cause was submitted to the jury on the plea of general issue, and evidence was introduced without objection on the ground of a variance, it was not error to refuse defendant’s request for a general affirmative charge, in view of circuit court rule 34 (175 Ala. xxi). Appeal from Circuit Court, Jackson County ; W. W. Haralson, Judge. Action on account by G. E. Stanley against J. P. Davis. From a judgment for plaintiff, defendant appeals. Affirmed. Bouldin & Wimberly, of Scottsboro, for appellant. The testimony being at entire variance with the complaint, the defendant was entitled to the affirmative charge. 52 Ala. 528; 163 Ala. 562, 50 South. 1023; 115 Ga. 156, 41 S. E. 686. Milo Moody, of Scottsboro, for appellee. Brief of counsel did not reach the Reporter. [MAJORITY — SAMFORD, J.] SAMFORD, J. The only assignment of error is the court’s refusal to give at the request of defendant the general affirmative charge. The cause was submitted to the jury oil the plea of the general issue, evidence was introduced' without objection, and the court charged the jury defining the issues as made by the evidence. “In all cases where there is a variance between the allegations and the proof and which could be cured by amendment to the pleading, * * * the trial court will not be put in error for refusing the general' charge predicated upon such variance, unless it appears from the record that the variance was brought to the attention of the trial court by a proper objection to the evidence.” Circuit court rule 34 (175 Ala. xxi). The appellant failed to comply with this rule, and on that ground is not entitled to a reversal. Let the judgment be affirmed. Affirmed.