Hodges, et. al., v. Wallace, et al.

Hodges, et. al., v. Wallace, et al. Ejectment. (Decided Dec. 17, 1908. 47 South. 1005.) Appeal and Error; Record; Matters to he Shown hy Bill of Exception. — Motion to strike replication, rejoinders and rebutters, are properly shown only by bill of exceptions, and where neither the motions nor the pleadings are contained in the bill of exceptions, assignments of errors relating to such rulings cannot be considered. Appeal from Lawrence Circuit Court. Heard before Hon. D. W. Speaks. Ejectment between William G-. Hodges and others and B. P. Wallace and others. From the judgment, Hodges and others appeal. Affirmed. G. O. Chenault, for appellant. Counsel discuss the pleadings and the action of the court thereon, with citation of authority, but does not discuss the question decided. Lowe & Tidwell and D. C. Almon, for appellees. Counsel insist that the matters assigned can be shown only by bill of exceptions, and that as the bill of exceptions does not show the matters complained of there is nothing for the court to pass upon. — Aetna Insurance Go. v. Lasseter, 45 South. 166; Harrison v. Ala. Mid. R. R. Go., 144 Ala. 246; Gottingham v. Greely, 129 Ala. 203. [MAJORITY — SIMPSON, J.] SIMPSON, J. — In this case the appellants do not insist on the assignments in regard to rulings on demurrers, hut only on those assignments regarding rulings on motions to strike replications, rejoinders, and rebutters. As neither the motions nor said pleadings sought to he stricken are set out in the bill of exceptions, under the rulings of this court they cannot be considered.—Holley v. Coffee, 123 Ala. 406, 26 South. 239; Cottingham v. Greely-Barnham Gro. Co., 129 Ala. 200, 30 South. 560, 87 Am. St. Rep. 58; Harrison a. Alabama Midland Ry. Co., 144 Ala. 246, 40 South. 394; Etna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 South. 166, 15 L. R. A. (N. S.) 252; 3 Ency. Pl. & Pr. 400, 401. Consequently the cause must be affirmed. Affirmed. Tyson, C. J., and Dowdell and Denson, JJ., concur.