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46 Ala. App. 605

Garrett v. Huffstutler

Court of Civil Appeals of Alabama

Decided April 7, 1971

Court of Civil Appeals of Alabama · decided 1971-04-07

Cited by 2 later decisions — most recently December 1973

2 state decisions

Relies on Brandon v. Leeds State Bank · Alabama Midland Railway Co. v. McDonald

Good law ✅— No negative treatment on recordhow we know

Decided 1971-04-07

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WRIGHT, Judge.

¶1Suit was filed below against appellants Garrett by appellees July 7, 1966, in the Circuit Court of St. Clair County, Alabama. Demurrer was filed to the complaint. The case was continued for trial on motion by defendants and by agreement three times in 1967. There is no indication in the record that the case was set for trial during the years 1968 and 1969. No ruling was requested on the demurrer.

¶2On January 19, 1970, the case was called for trial and neither defendant nor his attorney appeared. Jury demand was withdrawn by plaintiffs and motion for default judgment was granted with leave *606to prove damages. On March 26, 1970, defendants being present by attorney, hearing was held for proof of damages, and upon hearing, judgment was entered against defendants in the amount of $2,000.00.

¶3Appeal was taken to this court from the judgment.

¶4The only assignment of error sufficiently argued in brief to require our consideration on appeal charges that judgment by default was erroneously entered because the demurrer of appellants had never been disposed of. Argument on this assignment consists of three sentences, and the cases cited have no application to the point.

¶5Our opinion shall be as brief as appellants’ argument. It is the burden of the demurrant to secure a ruling on his demurrer. Failure of defendants demurring to the complaint to appear and insist on the demurrer will be treated on appeal as a waiver of the demurrer. Brandon v. Leeds State Bank, 186 Ala. 519, 65 So. 341; Alabama Midland Ry. Co. v. McDonald, 112 Ala. 216, 20 So. 472.

¶6No error being shown the judgment below is affirmed.

¶7Affirmed.

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