Volume 184 — Alabama Reports

Heard before Hon. O. J. Semmes. Virginia T. Wasserleben and Mary T. Godau were indicted jointly for the murder of Prank Wasserleben. A severance was ordered and this defendant was tried and convicted of murder in the 1st degree and sentenced to life imprisonment, from which judgment she appeals.

Heard before Hon. Ltjm Duke. Hill Cranberry was convicted of murder in the first degree, sentenced to be hanged, and appeals.

Will Kirkwood was convicted of manslaughter in the 1st degree and sentenced to imprisonment in the penitentiary for two years, and the judgment of the trial court having been affirmed by the Court of Appeals in the case of Kirkwood v. State, 8 Ala. App. 108; 62 South. 1011, he brings certiorari to review such judgment.

Heard before Hon. H. A. Pearce. Prank J. Mizell was convicted of murder in the second degree and sentenced to the penitentiary for 25 years, and he appeals. The defendant pleaded in abatement in pleas 1 and 2 the facts set forth in the opinion.

Petition by Yancey Davis and another for certiorari to review the ruling of the Court of Appeals in the case of Davis v. State, 8 Ala. App. 147, (62 South. 1027), affirming the judgment of the trial court. Writ denied.

Heard before Hon. W. H. Simpson. Bill by James M. Thomason against the Court of County Commissioners and others. From a judgment for the defendants, plaintiff appeals.

Originad petition in the Supreme Court. Petition by Ralph W. Shriner for mandamus directed to the judge of the circuit court of which Mobile County is a part, to compel the sustaining of a motion to strike, a certain pleading. The suggestion was plainly in the nature' of a plea in abatement. 1 Saunders Pleading, 20.

Heard before D. W. Speake. Quo warranto by the State of Alabama, on .the relation of P. L. Carswell and others, directed ■ to J. E. Reese, requiring him to show wherein he has right to usurp- and intrude into the office of councilman for ward No. 1 in the city of New Decatur. Prom a decree ousting respondent, he appeals.

Heard before Hon. John O. Pugh. Proceedings by tbe state of Alabama on the relation of J. R. Tate as Solicitor for the 10th Judicial Circuit for the disbarment of C. B. Powell, attorney at law.

Heard before Hon. C. P. Almon. Detinue by S. P. Williams against R. H. Lay. Judgment for defendant and plaintiff appeals. Counsel discuss errors assigned but without citation of authority.

Heard before Hon. Thomas W. Wert. Appeal from Morgan Law and Equity Court. Prom an assessment for street improvement by the city of New Decatur against the Decatur Land Company, the Decatur Land Company took an appeal to the Law and Equity Court. In that court an order was entered dismissing the appeal, and the Land Company appeals to this court.

Heard before Hon. E. H. Hill, Special Judge. Claim suit between D. A. Walden, execution plaintiff, and Lonie Craddock. Judgment for plaintiff, and claimant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Walden recovered judgment against B. F. Craddock, and had execution issued and levied upon one mouse-colored mare mule. Lonie Craddock intervened and filed claim bond and affidavit, and issue was made up by the court.

Heard before Hon. D. W. Spealce. Mandamus by John Yielding against J. M. Bland and others, composing the Excise Commission of Cullman county for the revocation of a retail liquor license issued to another, and for the issuance of a license to petitioner. From a judgment denying relief petitioner appeals.

Heard before Hon. C. C. Nesmith. Condemnation proceedings by tbe Western Union Telegraph Company against the South & North Alabama Railroad Company. From a judgment denying the right of condemnation the petitioner appeals. Under the circumstances shown by the petition, the right of way sought to be condemned is to be treated as one continuous tract of land. ■ — St. Louis v. Postal Oo., 51 N. E. 388; Houston, etc., Go. v. Postal Go., 45 S. W. 100.

Heard before Hon. John H. Miller. Mandamus by P. M. McNiell as County Superintendent of Education, against John W. Sparkman as County Treasurer of School Funds. From a judgment denying the writ, petitioner appeals. If the act of 1911, p. 326, amending section 1711, Code 1907, is constitutional, it was without application to Jefferson county because of an act approved February 22, 1887, providing for the office and salary of county superintendent of Jefferson county.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John H. Miller.</p> <p>Petition for mandamus filed by R. H. Hewitt against P. M. McNiell, as County Superintendent to require him to place petitioner’s name as Assistant County Superintendent upon the roll of teachers, and pay him accordingly.' From an order granting the prayer of petitioner, respondent McNiell appeals.</p> <p>The court erred in rendering judgment granting the peremptory writ of mandamus since section 2, acts 1911, p. 326, is not germane, referable or cognate to the title of the act as required by section 45, Constitution 1901.</p> <p>There is nothing in the provisions of section 2 of the act referred to which contravenes the provisions of section 45 of the Constitution of 1901. — Winter v. Sayre, 118 Ala. 1; Mobile T. Go. v. Gity of Mobile, 128 Ala. 335; Porter v. Groolc, 126 Ala. 600; State v. Jackson, 136 Ala. 96; A. G. S. v. Reid, 124 Ala. 253. There was no unauthorized delegation of legislative power to the board of education. — Ward v. State ex red. Parker, 154 Ala. 227.</p>

Heard before Hon. Bernard Harwood. Action by R. V. Windham against O. H. Fields, in which W. E. Atkins filed claim to a bale of cotton attached. From a judgment for claimant, plaintiff appeals.

Heard before Hon. R. L. Bradley. Application by Dock F. Brown for probate of the will ■of Isabella Brown, deceased, to which Julia I. Lock-ridge filed objections. From a decree admitting the will to probate, contestant appeals. The fourth interrogatory propounded to Patton was as follows: “Have you examined the typewritten instrument attached hereto, and marked ‘Exhibit A,’ and purporting to be a copy of the last will of said Isabella Brown, deceased?

Heard before Hon. H. T. Benton. Petition by J. Estes Jones for tbe probate of tbe will of Mary E. Jones, bis wife, with contest by Rosa E. Brooks. From a decree denying probate, petitioner appeals.

Original proceedings in tbe Supreme Court. Original impeachment proceeding by the State,' on relation of the Attorney General, against A. L. Hasty, as Judge of Probate and ex officio Judge of the County Court of Marengo County. The specifications were: (1) Willful neglect of duty. (2) Incompetency. (3) Corruption in office, and covered a period extending back of and beyond the present term of office of the incumbent.

Heard before Hon. J. J. Curtis. Petition by D. J. Moo-re against H. B. G-ravlee, Mayor of tbe town of Dora, to prohibit the mayor of said town from trying him upon a warrant issued by the mayor and served by the marshal of said town. Prom a judgment granting the prohibition, the mayor appeals.

Heard before Hon. John H. Disque. Ejectment by G. W. White against O. B. Swindall and another, revived, on death of White and said Swindall, after appeal by defendants from a judgment for plaintiff, as to White in the name of Morris Ford as his administrator, and as to Swindall in the name of his heirs.

Heard before Hon. Sapfold Berney. • Action in ejectment by John B. Vidmer and others against Thomas L. Lloyd. Judgment for defendant, and plaintiffs appeal. Plaintiff introduced certified copy of the deed from Harriet McGill to Adele Rabby, dated March 13, 1866; also, certified copy of a deed from William Vickars and another to Adele Rabby, wife of J. M. Rabby, dated December 3, 1870.

Heard before Hon. B. M. Miller. Statutory ejectment by Carrie B. Stewart against Amelia E. Cross. From a judgment for defendant plaintiff appeals. The solution of this case necessitates the consideration of and depends upon the following proposition.

Heard before Hou. Henry B. Foster. Ejectment by tbe Big Sandy Iron & Steel Company, and others against W. W. Williams, and others. Judgment for defendants and plaintiffs appeal. The court erred in admitting the tax deeds, mortgage, foreclosure deed and the other deeds objected to. The introduction is not justified by the proofs made under the provisions of section 4005, Code 1907.

Heard before Hon. John T. Lackland. Ejectment by Thomas J. Murphy against Daniel J. Melvin. Judgment for plaintiff, and defendant appeals. The action was ejectment, and the special plea was that a mortgage was the basis of the suit, and that at the time the mortgage was executed by the defendant he was of such -unsound mind that he did not understand the subject of the contract and its nature and probable consequences, and suggested the appointment of a guardian ad litem.

Heard before Hon. W. W. Pearson. Ejectment by Essie Stokes and another against R: L. Mulder and others. Judgment for plaintiffs, and defendants appeal.

Heard before Hon. Samuel B. Browne. Common-law7 ejectment by Ann Smith, Doe ex dem., against Richard Roe, with notice to Edward Singleton and others. Judgment for plaintiff, and defendants appeal. Plaintiff claims as the widow of Emanuel Smith.

Heard before Hon. M. Sollie. Ejectment by the Mobile & Girard Railroad Company against Clyde D. Rutherford. From a judgment for defendant, plaintiff appeals. The railroad claimed that a storehouse and lot in the possession of defendant was included within or partly within a deed executed to it by John Tarver, and showed possession in said John Tarver.

B. B. Bridges, Special Judge. Action by C. A. Farrow against the Sturdivant Bank, for breach of contract to reconvey land. There was judgment for plaintiff, and on motion of defendant the judgment was set aside, from which order plaintiff appeals.

Heard before Hon. A. E. Gamble. Assumpsit by tbe Baldwin Alabama Truck Farms against J. H. Strode, on tbe facts stated in tbe opinion. Judgment for defendant and plaintiffs appeal. A breach of trust by one of tbe officers of tbe Baldwin Alabama Truck Farms as a director and officer of tbe company is made by tbe facts of this case authorizing a recovery of tbe profits so made. — Perry v. Tuscaloosa'O. M. Go., 9 South. 217; Cook on Corp., sec. 649.

<p> Assumpsit. </p> <p>Appeal and Error; Harmless Error; Instnetions. — Although the judge in instructing the jury used an illustration calculated to prejudice the jury against the complaining party, yet where it appears reasonable upon a review of the whole case that it did not in fact operate prejudicially against such party, and the court otherwise correctly stated the law, a reversal will not follow.</p>

Heard, before Hon.’ Lum Duke. Action by Moreman' & Webb, against Walter Hoffman, in assumpsit. Judgment for plaintiffs, and defendant appeals. The first and second counts are on the common count.

H. H. McFerren brings certiorari to review the judgment of tbe Court of Appeals rendered on the appeal of Edgewood Highlands Land Company against him in Avhich the judgment of the trial court was reversed, and the cause remanded. See Edgewoocl Highlands Land Company v. McFerren, 9 Ala. App. 275; 63 South. 157. — The contract Avas a contract of sale and not of lease. — 50 S. E. 402; 19 L. R. A. 683; 77 N. W. 683.

Heard, before Hon. A. E. Gamble. Assumpsit by Hines Addix and Wilhelm Corders, as partners against J. Lee Long, as a member of the late firm of J. M. Gregory & Co. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. Gaston Gunter. Action by tbe International Agricultural Corporation against C. G-. Abercrombie, in assumpsit; from a judgment for defendant on Ms pleas of set-off and recoupment, plaintiff appeals. Tbe facts are sufficiently stated in tbe opinion of tbe court. After judgment, motion was made for a new trial; the fifth ground being that the verdict was a quotient verdict, and improperly arrived at.

<p> Assumpsit. </p> <p>1. Covenants; Action; Defenses, — In an action for breach of a covenant of warranty made in the sale of lands it is unnecessary either to aver or prove that the warrantor was notified of the eviction of plaintiff or his vendee.</p> <p>2. Same. — In an action for breach of the covenant of warranty in the sale of land it is not necessary to allege when the covenant was breached by the eviction of plaintiff or his vendee, as the time of eviction is relevant only on the question of limitation which is a defense.</p> <p>3. Same; Complaint; Sufficiency. — A complaint alleging that the testator of defendant conveyed to one Powell with covenants of general and special warranty, that Powell conveyed it to plaintiff, and he conveyed it to one D., with warranties; that D. devised it by will to certain devisees, and that these devisees were evicted from the premises by persons who recovered judgment against them; that plaintiff, being sued upon his warranty, paid the devisees a certain sum of money is sufficient to show that the devisees of D., who were ousted were the devisees of the property in question.</p> <p>4. Appeal; Review; Objections in the Trial Court; Demurrer.— The court will not review on appeal errors in the form of a complaint not pointed out by the grounds of demurrer assigned thereto.</p>

• Heard before Hon. Edward J. Gilder. Assumpsit by the Southern Grocery Company against W. C. Harrison. Judgment for defendant, and plaintiff appeals.

Jefferson Circuit Court. Heard before Hon. C. B. Smith. Assumpsit by the Berlin Machine Works against the Ewart Lumber Company.. After adverse rulings on the pleadings, plaintiff took a non-suit and appeals. Counts 1 and 2 were on two promissory notes. Count 3 was for goods, wares, and merchandise, and count 4 was for work and labor done. The first count claimed $480.50; the second count claiming $257.55, the third count claiming $100, and the fourth count claiming the same.

Assumpsit by Macon County against M. B. Abercrombie and the sureties on Ms official bond. Judgment for defendant which judgment was reversed by the Court of Appeals in the case of Macon Oownty v. Abercrombie, 9 Ala. App. 147; 62 South. 449; and defendants bring certiorari.

Heard before Hon. Lum Duke. Assumpsit by Richard B. Kelly against Walter Hoffman. Prom a judgment overruling a demurrer to the replications filed to the plea of the statute of limitations, defendant appeals. The replications were insufficient for failure to allege what amount was paid on account, and for what amount the unconditional promise in writing was given. — Watson v. Dale, 1 Port. 247; 25 Cyc. 1420; 15 Am. St. Rep. 730.

Heard before Hon. B. F. Reid, Special Judge. Assumpsit by D. Levy against. E. Meyrovitz, and others, defended by E. Meyrovitz on the theory that as the wife she executed the notes for her husband, who was also sued. From1 a judgment for plaintiff defendant E. Meyrovitz appeals. The charge which asserts that the burden was on defendant to reasonably convince the jury was improperly given, as the only duty is to reasonably satisfy.— Batson v. Ala.

Heard before Hon. W. W. Pearson. Assumpsit by H. F. Hamil, as amdinistrator of J. M. Bivings, against E. P. Flowers and Brooks Flowers, individually and as trustees and executors of John J. Flowers, deceased. Judgment for defendants, and plaintiff appeals. The agreement is set out in full, as are most of the facts necessary to a proper understanding of the opinion.

Heard before Hon. W. H. Simpson. Bill by W. M. Gray and others, on behalf of themselves and all the other stockholders of the Lauderdale County Farmers’ Union Warehouse Company, against J. M. Peerson to cancel and surrender a mortgage, and to cancel and surrender certain certificates of stock and for the purpose of calling a stockholder’s meeting to reorganize. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. W. H. Simpson. Bill by Walter V. Bobinson, a minority stockholder, against the Decatnr Land Company and numerous majority stockholders to administer the affairs of the corporation, to dissolve same and distribute its assets. From a decree overruling demurrers to the bill, respondent appeals. If complainant participated in the transactions urged as ground for dissolution, he cannot obtain relief. — 49 N. E. 563.

Heard before Hon. A. H. Benner^. Bill by Ada Briggs and another against P. P. Hunter and another to enforce a vendor’s lien. From a decree for complainant, Hunter appeals. The provisions of section 3413, Code 1907, have changed the common law rule that a purchaser by a quit claim deed is not entitled to protection from latent equities. — 59 Am. S't. Rep. 531; 148 U. S. 24; 24 L. R. A. 44; 138 Am.

<p> Bill for an Accounting and Discovery. </p> <p>1. Equity; Bill; Demurrer; Parts of Bill; Gross Assignment.— Where the appeal is taken from an order sustaining a demurrer only so far as it attacks certain parts of the bill, and there are no cross assignments of error, the appellate'court can review the rulings only to the extent the demurrer has been sustained.</p> <p>2. Same; Pleading; Demurrer to Part of Bill. — A demurrer to a part of the bill is equivalent to the motion to strike out the part thus objected to, and the sustaining of the demurrer has the same effect as the sustaining of a motion to strike the objectionable portion.</p> <p>3. Pleading; Demurrer; Part of Count. — Although a demurrer may be addressed to a part of a complaint or declaration at law where it is made up of several counts, yet a demurrer may not be addressed to a part of the count, but must go to the count as a whole.</p> <p>4. Mines and Minerals; Contracts; Lease; Substitution. — Where a defendant had previously worked mines under a lease executed to complainant in 1905, and subsequently in 1907, executed a lease containing more onerous conditions as a substitute for the former lease, all liabilities for coal taken from the mine or damages accruing up to the making of the lease in 1907, is controlled by the lease executed in 1905, and all subsequent liabilities are controlled by the substituted contract.</p> <p>5. Same; Forfeiture; Ownership. — Where the mine lease provided for a forfeiture for failure to pay royalties and that after forfeiture all the lessees rights should terminate, a bill alleging such forfeiture and that the tram tracks, etc., on the land which thereby became the lessor’s property had been destroyed _ by the respondent sufficiently alleged a cause of action for damages therefor.</p> <p>6. SaAne; Termination; Damages. — ’Where the lease provided for the faithful and diligent prosecution of the work of mining and the bill alleged the forfeiture of the lease for a failure to pay royalties and to prosecute the mining with diligence, etc., the complainant was entitled to recover damages for such default as incidental to an accounting in equity and to afford complete relief.</p>

Heard before Hon. E. J. Gilder. Bill by W. G. Lewis and others against R. S. Alston and others, to cancel a deed as cloud upon title, or for other appropriate relief. Decree for respondents and complainants appeal. Relief from a deed procured by undue influence may not be had anywhere except in equity. — Shipman v. Fúrniss, 69 Ala. 555.

Heard before Hon. Thomas H. Smith. Bill by Edward B. Loper against the Tombigbee Valley Railroad Company to assess damage for value of use- and occupation, and to balance of land, and for an injunction, in case of nonpayment. Decree for complainant, and respondent appeals.

<p>Appeal from Lauderdale Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by the Great Southern Phosphate Company against M. J. Waddle to set aside a conveyance of land as fraudulent and void. Decree for complainant and respondent appeals.</p> <p>Where the payment of a valuable consideration is shown the burden is on complainant to show7 the existence' of a fraudulent intent, and knowledge on the part of the grantee. — 141 Ala. 621. This burden has not been discharged. — (¡handler Bros. v. Higgins, 156 Ala. 511. The earnings of the wife being her separate estate, or property coming to her by descent when having been converted by the husband, creates such a debt as will be a valuable consideration. — 82 Ala. 334. Under such conditions the conveyance will not be set aside as fraudulent unless the grantee participated in or knew of the fraudulent intent. — 148 Ala. 353. The bill fails to make out a case and the proof fails to sustain the bill. — Pippin v. Tapio,- 148 Ala. 359; Simmons v. Shelton, 112 Ala. 291; Allen v. Riddle, 141 Ala. 621. The law conferring upon an insolvent debtor the right to choose his creditor does not require that he discriminate against his near relations. — Micou v. Bank, 104 U. S. 543; Goetter v. Norman, 107 Ala. 667. The occasion did not arise when the burden shifted to the grantee to show adequacy of consideration. — Ghipman v. Glennon, 98 Ala. 263; Smith v. Gollins, 94 Ala. 394; Ledbedtter v. Davenport, 45 South. 467.</p> <p>Complainant having established certain facts which prima facie entitled him to a recovery (Mobile S. Bank v. McDonald, 89 Ala. 434; Ober & Sons v. Phillips, Bwttorf Co., 145 Ala. 25; LightmaAv v. Goldstein, 164 Ala. 660) it is then incumbent on the grantee to establish that the last alleged past indebtedness forming the consideration was a valid and enforceable debt. — Morrow v. Campbell, 118 Ala. 330. Even then the conveyance may be defeated by showing a reservation of benefit to the grantor. — Moore, et al. v. Penn, et al., 95 Ala. 200; Lelvma/n-Durr Go•. v. Greenhut, 88 Ala. 478, and authorities supra.</p>

Heard before Hon. L. D. Gardner, Bill by W. H. Chandler against E-. E. Kelly and the Covington County Bank to cancel a deed for fraud. Decree for complainant and respondents appeal. The case made by the bill is that the state of Alabama sold the lands to one D. O. Taylor as a part of the swamp and overflow lands, and made him a deed to the same, and that complainant purchased from Taylor through mesne conveyances his immediate vendor being B. R. Stephens.

<p> Bill for Partition. </p> <p>1. Descent and Distribution; Devolution of Property. — On the death of .the owner of real property, the legal title descends to his heirs at law, subject to the homestead exemptions of his widow and minor children.</p> <p>2. Homestead; What Law Governs. — The homestead right of the widow and minor children on the death of the husband and father is determined by the law in force at the time of his death.</p> <p>3. Same; Allowance to Widow; Estate Acquired. — The homestead set apart to the widow as provided by section 2543, Code 1886, without the ascertainment and decree of insolvency vests a life estate only in the widow, the fee passing to the heirs at law of the husband.</p>

Heard before Hon. L. D. Gardner. Bill by Betty E. Eborn against W. O. Clark and another, to prevent foreclosure and to set off certain items against the notes secured by the mortgage. Decree for respondents and complainants appeal. The note is non negotiable and subject to the set off and discounts held against it by the maker. — Sec. 5161, Code 1907. No notice to Clark was necessary before the assignment to him. — Jones v. Lowery B. Go., 16 South. 11.

Heard before Hon. W. W. Whiteside. Bill by the Dadeville Oil Mill against W. W. Hicks and others, to have certain mortgages declared a general assignment, and enforce the assignment as to- the creditors. From a decree dismissing the bill for failure of proof complainants appeal.

Heard before Hon. Thomas H. Smith. Bill by John B. Marshall against L. I. Brannan. Decree for plaintiff, and defendant appeals. The agreed statement of facts shows the following: Eliza Kiernan was the owner of the land in suit. She conveyed it by warranty deed to Francis Kiernan on November 26, 1910, and he mortgaged it to complainant for value on December 29, 1910.

Heard before Hon. L. D. Gardner. Bill by W. K. Pullum against G. W. Smith to enforce a trust in property. Decree for complainant and respondent appeals. There is nothing looking to the creation of a partnership, and the agreement does not even contemplate such a thing. —Chisholm v. Cowles, 42 Ala.' 181; 22 A. & E. Enc. of Law, 55; Sabel v. Savannah Co., 135 Ala. 383.

Heard before Hon. L. D. Gardner. Bill by 13. B. O’K'elley against Dan Clark, to dissolve a partnership and for an accounting. Decree for respondent, and complainant appeals. Held: all the testimony heretofore taken in the cause by each party, including the testimony of respondent on the reference heretofore held by the register, and already referred to, may be used and considered by the register in making his report.

Heard before Hon. H. B. Foster. Bill by M. E. Powell against D. L. Rosenau, and others, to cancel mortgage, for an accounting, and for other relief. From a decree for complainant respondent Rosenau appeals. In the original brief counsel insist that complainant was not an administratrix and had no right or standing except in her capacity as widow, and can only recover what is authorized to be recovered by the widow.

Heard before Hon. A. H. Benners. Bill by C. C. Stamps against W. P. Boon, and others as Road Commissioner, to enjoin trespass to land by maintaining a road thereon. Decree for respondents and complainant appeals. The court erred in refusing to grant the injunction requested. — Sec. 23, Constitution 1901; 68 Ala. 48; 72 .Ala. 443; 80 Ala. 489; 92 Ala. 331; 119 Ala. 129.

Heard before Hon. Thomas H. Smith. Bill by Hiram W. Macon and Milton C. Skinner, partners, as the Citronelle Turpentine Company, against W. H. Buhlig. Decree for respondent, and complainants appeal.

Heard before Hon. E. C. Crowe. Bill by Annie Lou Jordan against J. J. Jordan for divorce and alimony. Decree for complainant, and respondent appeals.

Heard before Hon. John H. Disque. Action by M. R. Brewer against the Nashville, Chattanooga & St. Louis Railway for injuries sustained while a passenger. Judgment sustaining demurrer to the complaint and plaintiff appeals. The law recognizes the duty of carriers of passengers by rail to provide depots or waiting rooms for the accommodation or protection of passengers. — Sec. 5541, Code 1907.

Heard béfore Hon. J. C. B. Gwin. Action by W. A. Grimes against the Louisville & Nashville Railroad Company to recover damages for setting plaintiff down at the wrong destination. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under authority of Acts 1911, p. 450, § 6.

Albert McNeil brought suit against the Munson Steamship Line for damages for injury to him as an employee, and from an adverse judgment, appealed to the Court of Appeals, which court rendered a judgment affirming the judgment of the trial court. See 8 Ala. App. 610) 62 South. 459. Plaintiff brings certiorari to review such judgment of the Court of Appeals. Reversed and remanded.

Heard before Hon. Charles W. Ferguson. Action by Mary Walker, administratrix of Jesse Walker, deceased, against the Birmingham Coal & Iron Company. From a judgment for defendant, plaintiff appeals. The death was occasioned by an explosion in a coal mine, and the negligence is alleged in various ways under subdivision 1 and 2 of the Employers’ Liability Act (Code 1907, § 3910).

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John H. Disque.</p> <p>Action by Tom Whorton against tbe Alabama Great Southern Railroad Company for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals.</p> <p>The first count declares on negligence in failing to-provide plaintiff with a reasonably safe place to perform the duties of his employment. The second count is based on the negligence of a person in the employment or service of defendant who had superintendence intrusted to him while in the exercise of such superintendence. The third count avers that defendant negligently failed to provide a sufficient number of men to load said rails with reasonable safety, and that by reason thereof, and as a proximate consequence, one of said rails fell and caught plaintiff’s hand between the rail and the car, inflicting the injuries complained of. The other facts sufficiently appear from the opinion.</p> <p>The safe place referred to in the complaint means the premises where the work is being done. — 6 Words & Phrases, 5386; 71 Fed. 853; 66 N. Y. App. 105. The evidence failed to disclose any lack of safeness in the place provided, and the court should have directed a verdict for defendant as to that count of the complaint.</p> <p>Counsel insist that the count was good, and that the evidence amply sustained it to warrant a verdict, and that therefore, the court was not in error in declining to give defendant the affirmative charge as to said count.</p>

Walker Circuit Court. Heard before Hon. J. J. Curtis. Action by M. J. Lowery against the Illinois Central Railroad Company, for injuries suffered while in its employment. Judgment for plaintiff and defendant appeals. Plea 9 was sufficient. —Tallassee F. M. Go. v. Moore, 158 Ala. 356. The other pleas were also sufficient, and the court erred in sustaining demurrers thereto.

<p> Injury to Servant. </p> <p>1. Master and Servant; Injury to Servcmt; Complaint. — A complaint averring in each count the relationship of employer and employee between plaintiff and defendant, and in the first count alleging that plaintiff in the discharge of his employment while riding on a car in the entry of defendant’s mine, was thrown therefrom and injured by a defect in the condition of the ways, works, machinery, etc., and in the 2nd and 3rd counts alleging the negligence of the superintendent of defendant for failure to warn him, and negligence of defendant in failing to provide him a reasonable safe place in which to work, were each good as against the demurrers interposed.</p> <p>2. Same; Pleading; Conclusion. — A plea setting up that there was a safe way for plaintiff to ride, as he knew, but that he negligently adopted a dangerous method, is demurrable because not setting out the safe method of riding.</p> <p>3. Evidence; Opinion; Conclusion. — A question to a servant as to who had superintendence over him under the rules of the master is not objectionable as calling for a conclusion.</p>

Heard before Hon. C. P. Almon. Action by W. F. Webb against tbe Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6 of tbe Acts of 1911, p. 450.

Heard before Hon. J. J. Curtis. Action by Mark Ledbetter as administrator, against the St. Louis & San Francisco Railroad Company for damages for the death of his intestate. Judgment for defendant and plaintiff appeals. Count 1 of the complaint is' good. — So. Ry. v. Hyde, 164 Ala. 162. Counts 3 and 4were good.' — -Stringer v. R. R. Go., 99 Ala. 397.

Heard before Hon. Bernard Harwood. Action by William A. Anderson against the Southern Railway Company, for damages for setting out fire. Judgment for plaintiff and on motion of defendant the judgment and verdict was set aside and a new trial ordered, and plaintiff appeals. Transferred from the Court of Appeals under the statute in such cases made and provided.

Appeal, from Jefferson Circuit Court. Heard before Hon. E. C. Crowe. Action by Fanny Holmes against the Alabama Penny Savings Bank and others, for damages for trespass to realty. Prom a judgment for plaintiff defendants appeal. Transferred from the Court of Appeals.

Heard, before Hou. D. W. Speaks. Action by Lawrence D. Coffman, individually and for the use of the American Home Fire Insurance Company, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals.

Api>eal from Bessemer City Court. Heard before Hon. J. O. B. Gavin. Action by Miss N. L. Knox against the Alabama Great Southern Railroad Company for loss of baggage. Judgment for plaintiff, and defendant appeals. Case transferred from the Court of Appeals under Acts 1911, p. 450, § 6.

Heard before Hon. Hugh D. Merrill. Action by H. L. Greenlea against the Shelby Iron Works, for damages for maintaining a nuisance, a pond. Judgment for plaintiff and defendant, appeals. Plea 8 was good, and the court erred in sustaining demurrers thereto. — Ala. G. G. é I. Go. v. Turner, 145 Ala. 639. Counsel discuss the evidence and insist that its admission was clearly erroneous, but they cite no authority.

Appeal, from Mobile Circuit Court. Heard, before Hou. Samuel* B. Browne. Action by Callie Y. Smith against J. C. Rogers. From a judgment for plaintiff, defendant appeals. The suit was for the conversion of 140 cross-ties, and the verdict was for $50.

Heard before Hon. W. M. Walker. Action by Kearn Fitzpatrick against the Age-Herald Publishing Company for libel and slander. Judgment for defendant and plaintiff appeals. The plaintiff could have shown by extrinsic evidence that the publication referred to his home although it did not name him. —25 Cyc. 493, note 79; 18 C. C, A. 628; 34 Cal. 48; 47 Cal'. 207; 41 N. W. 1034.

Heard before Hon. Charles W. Ferguson. Action by George W. Luck against the Monarch Livery Company, a corporation, for damages for collision. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 149, § 6.

Heard before Hon. W. W. Pearson. Action by W. W. Langley doing business as the Clan-ton Bottling Works, aaginst the Southern Railway Company, for damages for delay in shipment of goods. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals. The bill of lading was not admissible in evidence as it was not identified. — 115 Fed. 678.

Heard before Hon. T. L, Sowell. . Action by W. H. Gurganus against Porter Brown for tbe wrongful taking of two bogs. Judgment for defendant, and plaintiff appeals.

Heard before Hon. A. E. Gamble. Action by Tabula Boan against the W. T. Smith Lumber Company. Prom a judgment for defendant, plaintiff appeals. The complaint contained only one count, the substance of which is stated in the opinion.- It was after-wards amended by adding counts 2 and 3, which were in all respects similar to the counts held good in Fulton’s-Case, 144 Ala. 340, 39 South. 282.

Heard before Hod. Samuel B. Browne. Action by Charles J. Bremifleck against the Mobile & Ohio Railroad Company, for failure to deliver certain goods. Judgment for defendant and plaintiff appeals. Proof of the delivery of the goods to the carrier, and their loss makes out a prima facie case.' — Southern Express Go. v. Rooney, 164 Ala. 270.

Heard before Hon. C. B. Smith. Action by Jane T. Methvin against the Singer Sewing Machine Company. Judgment for plaintiff, and defendant appeals. The complaint follows the Code form. The matter alleged in addition seems to be a history of what transpired at the house when the agent went to get the machine, detailing not only the conversation between plaintiff and defendant’s agent but also the acts of the agent.

<p> Killing Stock. </p> <p>1. Parties; Receivers; Description. — Where the caption of a complaint named as defendant one Atkinson, followed by a comma, and the word “receiver,” but there was no allegation or proof as to what he was receiver of, nor that defendant railroad company was operated by him or by any person as receiver, the word “receiver” was merely deseriptio personae, and the complaint was not sufficient to charge him as receiver.</p> <p>2. Same; Designation. — In the absence of a plea of misnomer, a description of defendant railroad company in a complaint as “A. B. & A. Railroad” was not objectionable.</p>

<p> Trespass. </p> <p>1. Appeal and Error; Review; Immaterial Question. — Where a count in a complaint is stricken, all questions arising on the rulings on demurrers to such counts are eliminated and not presented for review.</p> <p>2. Trespass; Realty; Complaint. — The complaint in trespass to land which substantially follows the form laid down in the Code for such action is not subject to demurrer.</p> <p>3. Appeal and Error; Review; Matters Assigned. — Where the rulings on demurrer to a count in a complaint were not assigned as error, they cannot be reviewed on appeal.</p> <p>4. Same; Rulings on Motion. — To he reviewable on appeal, a motion for a discontinuance must be presented by proper bill of exceptions.</p>

Heard before Hon. G. K. Miller. Action by Mattie J. Newberry against H. M. Atkinson and others, as receivers of the A. B. & A. Ry. Co., for damages stiffered while a passenger. Judgment for-defendant and plaintiff appeals. The pleas of contributory negligence were subject to the demurrers interposed. — Dilburn v. L-. & H., 47 South. 211; Huggins v. So. By., 159 Ala. 189; Wes. By. v. Bus-sell, 144 Ala. 150; So. By. v. Shelton, 136 Ala. 191; 2 Hutchinson on Carriers, 1328.

Action by Mrs. Mattie E. Adkins against the Birmingham Railway, Light & Power Company, for damages for injury while a passenger. Judgment for plaintiff in the trial court and on appeal by defendant to the Court of Appeals, the judgment of the trial court was affirmed. (8 Ala. App. 555; 62 South. 367.) Defendant brings certiorari to review the action of the Court of Appeals.

Heard before Hon. W. W. Haralson. Trespass by J. T. Webb & Bros, against W. M. Story. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear from the opinion.

Heard before Hon. Thomas W. Wert. Action by Ephraim Beck against the Louisville & Nashville Railroad Company for injuries. Judgment for plaintiff, and defendant appeals.

' Morgan Circuit Court. Heard before D. W. Speake. Action by Fanny Hays and others against the city of Decatur, and the North Alabama Traction Company, for damages to abutting property on account of the change in the grade of the street. Judgment for plaintiffs and defendants appeal.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Action by Mrs. S. E. Box and others against the Southern Railway Company for damages for setting out fire. Counsel discuss the issues raised by the assignments of error which are based upon the matters appearing in the bill of exception, but in view of the opinion of the court, it is not deemed necessary to here set them out.

Heard before Hon. John H. Miller. Action by the Aetna Accident & Liability Company against the Birmingham Railway. Light & Power Company, for damages to an automobile. Judgment for plaintiff, and defendant appeals.

Heard before Hou. C. P. Almon. Action by James P. Pearce against the Aldrich Mining Company in trover. Judgment for defendant, and plaintiff appeals. See, also, 169 Ala. 161, 52 South. 911, Ann. Cas. 1912B, 288.

Heard before Hon. John C. Pugh. Action by J. C. Choate against the Alabama Great Southern Railway Co., for damages for injury to him while an employee. Judgment for plaintiff and defendant appeals. The first count of the complaint is based on a defect in a jack furnished by defendant for raising cars whereby the car under which plaintiff was working was permitted to fall on him, and was under subdivision 1, section 3910, Code 1907.

Heard before Hon. A. E. Gamble. Action by James L. McCaskey, by next friend, against Gantt Bros., and the individuals composing the firm. Judgment for defendants, and plaintiff appeals.

Heard before Hon. J. C. B. Gwin. Action by J. M. Reid against tbe Sloss-Sheffield Steel & Iron Company, for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. A statement of the complaint, and special pleas numbered 18 to 22, inclusive, will he found in the report of the former appeal of this case (177 Ala. 262, 58 South. 301). Pleas 25 and 27 will also be found in that report.

Heard before I-Ion. E. St Lyman. 'Action by C. L. Bates against the Louisville & Nashville Railroad Company for damages for injury to person and property received while crossing track. Judgment for defendant, and plaintiff appeals. While crossing defendant’s track at public road crossing in a four-mule wagon which he was driving, plaintiff was injured by collision with defendant’s passenger train, which struck the hind wheels of the wagon, and threw him to the ground.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p>

<p>Appeal from Dallas Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p>