58 So. 992 | Ala. | 1912
Lead Opinion
Upon the conclusion that' the judgment against the Central of Georgia Railway Company Avas excessive in the sum of |200, and hence erroneous, the Court of Appeals submitted to petitioner (plaintiff) Avhether he would consent to the reduction of the judgment by that sum. This petitioner declined to do, Avliereupon the Court of Appeals reversed the judgment and remanded the cause.
The procedure folloAved to the extent indicated by the Court of Appeals was in accord with that prescribed by the act approved April 21, 1911 (Acts 1911, p. 587), which, in its substantive provisions reads:
“Section 1. * * * That when an appeal is taken to the Supreme Court or Court of Appeals from the judgment of any court, and the Supreme Court or Court of Appeals shall be of the opinion that the case should be reversed because the judgment of the lower court is*386 excessive and that there is no other ground of reversal, the Supreme Court or Court of Appeals, shall notify the appellee of the amount which it deems in excess of the just and proper amount of recovery, and require the appellee within a time to he stated in said notice to remit such amount upon penalty of a reversal of the case. If the appellee does not, Avithin the time stated in such notice, or within such further time as may be granted by the court for good reason, file a remittitur of such excessive amount the court shall reverse and remand the case; but if the appellee shall file with the court a remittitur of the amount deemed excessive by the court, the court shall reduce the amount of the judgment accordingly, and shall affirm the case and enter a judgment for such reduced amount, which judgment so entered shall be and remain the judgment of the lower court and shall date back to the time of the rendition of the judgment in the lower court. Provided that if the appellee files a remittitur then the Supreme Court or Court of Appeals shall notify the appellant of the filing of such remittitur and require the appellant within a time stated in said notice to agree or disagree to its judgment and if such appellant disagrees to said judgment then said case shall be reversed and remanded.”
The petitioner urged in that court, and again presses here, that the act of April 21, 1911, is constitutionally invalid.
As appears, the purpose of the act is to avert reversals, entailing neAv trials, in cases where it is determined, as the sole error, in the appellate tribunals, that the judgment rendered at nisi prius is excessive. Upon the adjudication of that fact, the reversal enters, unless both the plaintiff (appellee) and the defendant (appellant) consent to a reduction of the amount of the judgment to the sum the appellate tribunal affirms is or
The argument for this petitioner against the constitutionality of the quoted statute rests upon the conditional option the proviso gives the defendant (appellant) to not consent to the reduction to which plaintiff (appellant) consents. As now presented, that phase of the statute was not given opportunity of operation; the plaintiff having declined to consent to the reduction. When a case is presented where the plaintiff (appellee) consents to the reduction the court submits to him, and the defendant (appellant) declines to consent to that reduction, a question Avill arise as to the legislative poAver to thus by the mentioned proviso hinge the judgment in the appellate tribunal, and thereby control the judiciary in the performance of its function. That
The idea, pressed for petitioner, that the procedure prescribed by the quoted statute is an unwarranted infraction of the right of trial by jury, in respect of the assessment of damages, is wholly untenable. It is no more infraction of that right than the ordinary reversal for error in that the judgment is excessive. It would not bind the second jury in the assessment of damages in the one instance any more than in the other. In neither instance could or should the fact that the appellate tribunal had fixed a sum which, if remitted, would avert reversal, be brought to the attention of the second, jury or be considered by them in ascertaining and determining or finding the amount to be awarded. The whole purpose and effect of the statute is to conclude litigation by a method operative and available alone in the appellate tribunals. If the statute were given a restrictive operation and effect upon the amount of the recovery in the trial courts, it would then seem to be palpably invalid. It will not be construed with that result to attend.
The Court of Appeals, in response to rehearing therein, expressly and correctly ruled that there was no duty, no obligation, on the plaintiff to go upon defendant’s right of way and abate the alleged nuisance occasioned by the decomposition of the animal’s carcass.—Joyce on Nuisances, § 199; Crommelin v. Coxe, 30 Ala. 318, 329, 68 Am. Dec. 120. It was held, however, that the plaintiff should have exerted ordinary care and diligence to have minimized the discomfort and damage arising or resulting from the nuisance upon defendant’s right of way. This seems to be the doctrine, in the pertinent particular, of Crommelin v. Coxe, supra. Whether in this instance he could have done so, or
The petition is therefore denied.
Concurrence Opinion
concurs in both the opinion and the conclusion, but sees no room in this case for the application of the rule of minimizing damages.
