Opinion
6 Div. 752.
April 11, 1918.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Forney Johnston and W. R. C. Cocke, both of Birmingham, for appellants. Francis M. Lowe, of Birmingham, for appellee.
We pretermit, as unnecessary to be determined, the question as to whether or not, under the peculiar circumstances of this case, the ruling of the court in reinstating the cause upon the docket by order entered in February, 1916, is reviewable under the bill of exceptions presented in April, 1917. If reviewable, the action of the court was clearly without error, as we are of the opinion that the nonsuit taken by the plaintiff on account of the adverse rulings of the court, in sustaining the amended plea in abatement, was not a voluntary nonsuit in the sense insisted upon by counsel for appellants, and treated in the authority cited of Simpson v. Brock, 114 Ga. 294, 40 S.E. 266. It was an involuntary nonsuit, in that it was produced by such adverse rulings, and, clearly, the trial court had the right within 30 days thereafter to correct the ruling, and to permit, on motion of the plaintiff, a reinstatement of the cause.
The record discloses that the trial of the cause was had on January 5, 1917, before Hon. C. B. Smith. The bill of exceptions was presented to him on April 4, 1917, but was not signed until July 19, 1917. It was therefore not signed within the 90 days following its presentation, and the motion of the appellee to strike the same, so far as it purports to be a bill of exceptions signed by the said presiding judge, must be sustained. Section 3019, Code 1907; Rice v. Beavers Co., 196 Ala. 355, 71 So. 659.
Counsel for appellants insist, however, that irrespective of the action of the court upon the motion to strike the bill of exceptions, the court can review, from the recitals of the record proper, the action of the court on January 5, 1917, in sustaining the motion to strike the amended plea in abatement; and this, whether an exception appears to have been entered or not. Acts 1915, p. 598.
It is further insisted that the motion to strike was error, and that a demurrer, not a motion, is the method of testing the sufficiency of the plea. The substance of the plea and some of the grounds of the motion sufficiently appear in the foregoing statement of the case. It is of course recognized as a general rule that a demurer, and not a motion, is the proper method of testing the sufficiency of pleas; but it is also well settled that a plea may be so lacking in merit as to be classed as frivolous, and therefore within the discretion of the court to allow the same to be stricken instead of putting the plaintiff to a demurrer. Carter v. Fischer, 127 Ala. 52, 28 So. 376; Central of Ga. Ry. Co. v. Sims, 169 Ala. 295, 53 So. 826; section 5322, Code 1907.
We are of the opinion that the plea comes within this rule, and that the court was not in error for sustaining the motion to strike the same.
The conclusion here announced results in an affirmance of the judgment.
Affirmed.
ANDERSON, C. J., and SAYRE, J., concur. McCLELLAN, J., concurs in conclusion.