On Rehearing
Appellant, in its application for rehearing, contends that this court, in its opinion, committed error in four ways : (1) by holding that a judgment non obstante veredicto or an arrest of judgment will only issue where the verdict was on a count which did not state a substantial cause of action; (2) by holding that a variance between the pleading and proof could not be raised by either a motion for judgment non obstante veredicto or motion for an arrest of judgment in the case at bar; (3) by holding that an appeal to the circuit court from the Civil Court of Jefferson County, vacated the judgment of the said civil court, and it thereafter had no force or effect; and (4) that the trial of the appeal from the civil court to the circuit court would be de novo and all errors committed in the civil court would be waived so far as hearing in the circuit court is concerned.
In answer to appellant’s contentions one and two, we say now as we did before, that a defendant is entitled to a judgment non obstante veredicto or an arrest of judgment only when the verdict for the plaintiff is based on a count which does not state a substantial cause of action, and appellant never contended the complaint in question failed to state a cause of action; hence, he cannot now complain. Also, where there is a variance between the pleading and proof, the proper way to raise the issue is by specific objection to the evidence, pointing out the variance. Furthermore, the trial court will not have committed error if it refuses the general affirmative charge which is based on the variance, unless there was specific objection made to the evidence. Rules of Practice, Circuit and Inferior Courts, Rules 34 and 33.
*149In the case at bar there was no objection to the evidence nor was a request made that the general charge raising the variance be given to the jury.
Again, we say that the trial court properly denied the motions for judgment non obstante veredicto and in arrest of judgment as requested by the appellant.
As to appellant’s contentions three and four, we say again that we believe an appeal from the Civil Court of Jefferson County to the circuit court for a trial de novo has the effect of wiping out the errors committed in the civil court, so that a new trial can be had in the circuit court and a new judgment there rendered.
Therefore, we are not persuaded by appellant’s argument that we committed error in our original decision of this appeal.
However, we did make a statement in our original opinion which, after careful reconsideration, we think should be corrected.
On page 219 of the opinion, beginning with the second paragraph, we said: “Although we think there was a variance between the allegations of the complaint filed in the Circuit Court and the proof offered in support thereof, * * which we now consider to be an erroneous statement.
The facts of the case reveal that the defendant Burke did not appeal to the circuit court from the judgment of the civil court, and it was pointed out to the jury in the circuit court by the trial judge that there was only one defendant in the circuit court, and that was appellant.
We therefore conclude that when Burke failed to appeal the judgment to the circuit court, this operated as a severance as to him, leaving appellant as the only defendant in the circuit court, and where the jury found against appellant, after being instructed that Burke was not a defendant, and said nothing about Burke, it was equivalent to a finding in favor of Burke. Phillips v. Holmes, 165 Ala. 250, 51 So. 625; and Handley v. Lawley, 90 Ala. 527, 8 So. 101. See also Smythe v. Dothan Foundry & Machine Co., 166 Ala. 253, 52 So. 398; McAnally v. Hawkins Lumber Co., 109 Ala. 397, 19 So. 417; and Gamble v. Kellum, 97 Ala. 677, 12 So. 82.
Hence, wc are of the opinion that there was not a variance between the pleadings and proof as had been contended by appellant.
No new matters being presented to us by appellant, the application for rehearing is overruled.
Opinion extended.
Application for rehearing overruled.