Bromberg v. First Nat. Bank of Mobile , 235 Ala. 226 ( 1937 )

A party not entitled to recover in any event cannot complain of error if committed on the trial. Guest et al. v. Guest et al., 234 Ala. 581, 176 So. 289; Britt v. Daniel, 230 Ala. 79,159 So. 684; McGifford v. Protective Life Ins. Co., 227 Ala. 588,151 So. 349. That is to say, if error only affected a party not entitled to succeed, such party cannot complain in this court to a reversal on behalf of the other whom he did not stand for in a representative capacity. Stephens v. Walker,217 Ala. 466, 117 So. 22; Britt v. Daniel, supra; Kelly v. Hanwick,228 Ala. 336, 153 So. 269.

The record shows that appellants were not entitled to these moneys in any event, whether Bromberg held them as bailor or as trustee. It is sufficient to say that the whole of the voluminous record has been re-examined and we have no doubt as to the result announced.

It may be well to say that, when the effort on the part of Mr. Bromberg as to the tax returns is considered, his statements and affidavits in the application were for the return to the account of Bowen and Murdock. This conclusively shows that he considered that he was acting as, and held the moneys only as, trustee. The pertinent correspondence is exhibited at page 438 et seq. of the record. The language of this effort on the part of Mr. Bromberg can have no other meaning but that he was acting as trustee and not in his individual capacity. The refund amounting to about $1,300 allowed by the government was received and deposited by Mr. Bromberg to the account of Bowen and Murdock.

After a review of the whole matter, we are of the opinion that the application for rehearing should be overruled, since the trial was had as if the pleadings were amended. Such is our understanding of the record and the theory on which the trial proceeded. Federal Automobile Insurance Ass'n v. Meyers,218 Ala. 520, 119 So. 230.

Application for rehearing overruled.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.