108 So. 628 | Ala. Ct. App. | 1926
This was a suit in detinue by appellant (plaintiff in the court below) against appellee (defendant) for the recovery of certain items of personal property. From a judgment in favor of the appellee for the costs, this appeal is prosecuted.
The case was tried and judgment entered on March 4, 1925. Thereafter plaintiff filed its motion for a new trial, which was indorsed "3/16/25 continued, Gamble, Judge." On June 8, 1925, according to the recitals in the bill of exceptions, the motion was called, and both plaintiff and defendant offered testimony on the hearing; no objection to the said hearing being interposed by defendant. While the order of continuance of said motion was irregular, abortive, and imperfect, yet the action of the appellee in failing to object to the hearing on June 8th, and in taking part in same cured this defect.
The bill of exceptions is indorsed: "Presented to the undersigned by plaintiff on this, the 5th day of September, 1925. [Signed] J. Ray Hudgens, Clerk of the Circuit Court, Crenshaw County, Alabama" — and shows to have been signed and approved by the trial judge as a correct bill of exceptions on September 12, 1925.
Appellee moves to strike the bill of exceptions on the ground that the judgment overruling the motion for a new trial is shown only by the bill of exceptions, and cannot be considered as the judgment from which the appeal is prosecuted, and that the bill of exceptions shows not to have been presented in accordance with law within 90 days from the date of the only judgment shown by the record proper.
The said motion must be and is overruled. The judgment overruling the motion for a new trial is required to be incorporated in the bill of exceptions in order to be reviewable on appeal. Code 1923, § 6088. Birmingham Water Works Co., v. Justice,
"The decision of the court (on the motion for a new trial) shall be included in the bill of exceptions which shall be a part of the record in the cause."
The bill of exceptions, being presented and signed within the required time as regards the judgment on appellant's motion for a new trial, will be sufficient to preserve and present for review the rulings of the trial court on the trial of the original cause, which are shown therein, as well as the ruling of the court on the motion for a new trial. Code 1923, § 6433.
The plaintiff claimed title as mortgagee under two mortgages executed by R. M. Gibson and wife to appellant. The property was seized by the sheriff under a writ of detinue. After seizure the defendant executed a forthcoming bond, and the property was delivered to him. The case was tried upon the general issue non detinet, and resulted in a verdict and judgment for the defendant. The evidence was in sharp conflict; that for the plaintiff tending to show that the property in suit was the defendant's, and was covered by and included in the mortgages held by plaintiff; that for the defendant tending to show that the property sued for was not that included in plaintiff's mortgages, but that it belonged to defendant's sons.
Only a few exceptions reserved during the taking of testimony present any matters for our decision. We have examined each of them, and are of the opinion that none of them have merit. Clearly it was not permissible to interrogate the witness W. A. Gibson as to his undisclosed motive, intention, or purpose. The question to the witness Styron was likewise clearly objectionable because of the assumption which it carried that the witness was paid some amount by defendant, when there was no evidence that such was the fact.
We find no error in the action of the trial court in overruling appellant's motion for a new trial, nor in any other particular, and there being none in the record, the judgment will be affirmed.
Affirmed.
BRICKEN, P. J., concurs in conclusion. *391