On Rehearing. The verdict of the jury was as follows: "We, the jury find the defendant, A.D. Eason, the father of the bastard child, Clara Mae; H.O. Dean, foreman."
For the first time during the entire progress of the proceedings, the appellant, now on application for rehearing, claims that such error prevailed in the form of the verdict aforesaid as would preclude the rendition of a proper judgment thereon. And this is the sole point now urged.
The merits of the question aside, there is no basis for a review of the point, there being no assignment of record asserting error in this regard. The rule of waiver is clearly applicable. Williams v. State, 117 Ala. 199, 23 So. 42; Harris v. State, 28 Ala. App. 23, 25, 177 So. 311; Whorton v. State,28 Ala. App. 107, 179 So. 398; Griffin v. State, 28 Ala. App. 366,184 So. 284.
No such contention of error was presented in brief and argument upon original submission, and the rules of procedure in civil actions are governing. The point having been first raised here on this application for rehearing, the waiver is conclusive. Holloway v. Calvin, 203 Ala. 663, 665, 84 So. 737; Hamilton v. Cranford Mercantile Co., 201 Ala. 403, 78 So. 401; Smith Lumber Co. v. McLain, 202 Ala. 32, 79 So. 370.
Moreover, we are not impressed with the instant argument. In oral charge to the jury, the court, six separate times, specifically and clearly instructed them as to the single issue in the case, to-wit: "Is the defendant A.D. Eason the real father of the bastard child Clara Mae?" We think the verdict returned is sufficiently responsive to these instructions and to the direction of the statute to support a valid judgment.
As further persuasion against this recently discovered position of appellant, it is interesting observation that in his written requested charges to the jury — and given by the court — the word "real" (which omission in the jury's verdict is his lament now) was omitted. Nor was this alleged deficiency (in the jury's verdict) noticed or brought to the attention of the trial court in any stage of the proceedings — not even in his motion for a new trial.
Undoubtedly, the judgment below is not now subject to reversal upon this asserted ground — nor upon any other so far as we can see. So the application is overruled. Opinion extended.
Application overruled and rehearing denied.