NATIONAL SURETY CO. v. O'CONNELL

(81 South. 660) NATIONAL SURETY CO. v. O'CONNELL. (1 Div. 82.) (Supreme Court of Alabama. Jan. 16, 1919.) Appeal and Error &wkey;>1042(4) — Rulings on Pleadings — Review. Error may not be predicated on the court’s refusal to strike matter from a complaint, since defendant may object to the evidence or request special charges, and Acts 1915, p. 598, does not change- or abrogate such rule, merely dispensing with the necessity of setting motions out in the bill of exceptions, or excepting to the ruling upon same. Certiorari to Court of Appeals. Action by John C. O’-Connell against the National Surety Company on the bond given by one Wilson as principal and said Company as surety. There was a judgment of the Court of Appeals (81 South. 146 *) affirming a judgment, from which the Surety Company had appealed, and the Surety Company brings certiorari. Writ deified. Armbrecht, Johnston & McMillan and J. Osmond Middleton, all of Mobile, for appellant. Gaillard, Maborner & Arnold, of Mobile, for appellee. [MAJORITY — ANDERSON, O. J.] ANDERSON, O. J. Upon the consideration of this application, we are of the opinion that the decision of the Court of Appeals, 81 South. 146, is correct in the final result, and the writ is denied. We must not be understood, however, as sanctioning the opinion of the Court of Appeals, in so far as it reviews or would revise the ruling upon motion to strike nonrecoverable items or immaterial averments from the complaint, as we have a long line of decisions holding that the ruling upon such motions is not revisable by this court, and that advantage must be had by objecting to the evidence or by special instructions. L. & N. R. R. v. Fletcher, 194 Ala. 259, 69 South. 634; Bixby v. Evans, 174 Ala. 571, 57 South. 39; So. R. R. v. Coleman, 153 Ala. 266, 44 South. 837; Woodstock v. Stockdale, 143 Ala. 550, 39 South. 335, 5 Ann. Cas. 578; Vandiver v. Waller, 143 Ala. 411, 39 South. 136; Marx v. Miller, 134 Ala. 347, 32 South. 765; Columbus R. R. v. Bridges, 86 Ala. 448, 5 South. 864, 11 Am. St. Rep. 58; Goldsmith v. Picard, 27 Ala. 142. The Act of 1915, p. 598, does not change or abrogate this rule. It merely dispenses with the necessity of setting written motions out in the bill of exceptions or of excepting to the ruling upon same, but does not enlarge as to what would or would not be reversible error as to the action taken upon same by the trial court; in other words, it does not make rulings upon same that were not heretofore revisable upon appeal reviewable since the enactment of said statute. Writ denied. MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur. 16 Ala. App. 654.