Bohanan v. Darden

*226ON APPLICATION POR REHEARING.

The appellant, in his application for rehearing, insists that this case should be reversed because the court refused to admit testimony in support of plea No. 5. It is true that the judgment entry on this appeal sIioavs no rulings on the demurrers to this plea, but we take judicial knowledge of what is shown by the original record when this case Avas before the Supreme Court on a former appeal (Bohanan v. Thomas, 159 Ala. 410, 49 South. 308) and the record on that appeal shows that demurrers to this plea were sustained by an order of the court made on April 19, 1907, and the Supreme Court in reviewing the case sustained this ruling of the trial court. The record in this .case shows that these pleas Avere not refiled after the court below had, as shown by the record on former appeal, sustained demurrers to them.

The conduct of the case shows that the case was tried to its conclusion on the issues joined on other pleas and not on the issue tendered by this immaterial plea, and that the plaintiff protected himself- against the injection into the case of the defense not pleaded by objecting to the evidence offered in support of it. — Gainer v. So. Ry. Co., 152 Ala. 186, 44 South. 652.

The trial court cannot be put in error for refusing to admit evidence in support of a plea not refiled after demurrers had been sustained to it by the court on a former trial, and that ruling sustained by the appellate court on a revieAv of the case, and the cause reversed and remanded for another trial for error committed in other matters. — Ala. City Ry. Co. v. Bates, 155 Ala. 847, 46 South. 776.

The other propositions contended for in the application are treated in the original opinion, and Ave are *227unwilling, after a consideration of wliat is said in tlx application for a rehearing, to depart from the rulings made.

Application overruled.