Richard v. Steiner Bros. , 152 Ala. 303 ( 1907 )

DENSON, J.

This appeal is based on a decree of the chancery court sustaining a demurrer to the bill. The demurrer contains four distinct grounds, but the decree is not rested upon any particular ground. It is in general terms, adjudging and decreeing that “said demurrer be, and’ it is, sustained.” The rule of practice as declared by our decisions is that, on an appeal from a decree sustaining or overruling a demurrer to a bill in equity, tbe decree will be referred to the causes of demurrer which will support it, and not to those which would render it erroneous, working a reversal. — McDonald v. Pearson, 114 Ala. 630, 641, 21 South. 534. The assignment of errors presents for review the decree of the court only in respect to the first, third, and fourth grounds of the demurrer, leaving out of consideration the second ground entirely. If the second ground of demurrer is a good one, notwithstanding error is not predicated upon it, following the rule of practice above stated, the decree should be affirmed.

It is the rule of this court to indulge all presumptions favorable to the correctness of the decree; and, as the second ground of the demurrer is not presented for review by the assignment of errors, we will presume (following this rule, and without considering the first, third, and fourth grounds of the demurrer, upon which the assignment of errors is based) that the second ground of demurrer is good, and refer the decree to that ground. Furthermore, if the second ground of the demurrer should be conceded to be bad, yet, by failure to assign error in the decree in respect to this ground, the appellants have not only waived their right to insist on error in the decree in that respect (Evans v. St. John, 9 Port. 186), but in fact do not so insist; and, as the decree may be placed on that ground of the demurrer, as well as on any other, the result should be an affirmance.

It is true there is a statement, signed by the chancellor, immediately following, but not forming a part of, the decree, to the effect that the demurrer is sustained upon the first, third, and fourth grounds assigned. This cannot be considered for any purpose.

The decree of the chancellor is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Anderson, JJ., con-cur.