The appellant's brief, upon the submission of this cause, does not so comply with rule 13 (175 Ala. xviii, 61 South. vii) as to authorize a review of all objections and exceptions to the argument of appellee's counsel as for a consideration of same upon the original trial of the case, and we shall only consider those portions of said argument as are specifically set forth or referred to in said original brief in passing upon the rulings of the trial court as distinguished from the motion for a new trial. Whether or not all of the objections should be considered in passing upon the motion for a new trial we need not now decide.
So much of the argument as was made the basis of assignments of error 40 and 41 was excluded by the trial court. True the exclusion was perhaps not as positive or affirmative as it could have been, but the trial court cannot be put in error for overruling an objection or motion at the instance of the movant when the same was sustained. Moreover, the trial court, just previous to this ruling, instructed the jury that, where an objection to argument was sustained, and it was ruled out, it meant that the jury was not to consider same.
We see nothing so improper in so much of the argument as is covered by assignments of error 42, 43, 44, and 45 as to put the trial court in error for not excluding same.
The trial court will not be reversed for overruling the motion to exclude the argument of plaintiff's attorney as embraced in assignments 32, 33, 34, 35, 36, 37 and 38. The improper portion of same, that is, "by some hook or crook," was excluded and the remainder was warranted as per the plaintiff's contention or theory. The record disclosed the delay; and if, as the jury found, the plaintiff was entitled to a judgment, the defendant had escaped liability for 8 years. This was not the statement of a fact not supported by the evidence, but was merely arguendo of the plaintiff's contention. Moreover, the court stated to the jury that neither was responsible for the delay.
As to whether or not so much of the foregoing argument as was objectionable was not so eradicated as to cause a reversal for not granting a new trial, under the case of B. R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037, or was so eradicated as to justify a denial of the new trial under the more recent case of B. R., L. P. Co. v. Gonzalez,183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543, we need not decide, as the case must be reversed for the error hereinafter set out.
The trial court erred in not sustaining the defendant's objection and motion to exclude so much of the argument of plaintiff's counsel as covered by assignments of error 30 and 31. It found no support in the evidence, and proof of the assertion would not have been admissible. Southern Car Co. v. Adams, 131 Ala. 147, 32 So. 503; Long v. Seigel, 177 Ala. 338,58 So. 380. It is insisted by counsel for appellee that this point was not sufficiently pressed and argued in brief upon the submission of this cause. It is sufficient to say that the brief as found in the record makes specific reference to this line of argument.
The rehearing is granted, the judgment of affirmance is set aside, and the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
All the Justices concur.