7 Div. 336. | Ala. | Nov 2, 1922
The appellee, a physician, was awarded judgment against appellant on an account for professional services. The defenses asserted, in addition to the general traverse, were payment and the statute of frauds. The items of account contested were those based on services to Prescott and Harvey Gay, brother of appellant. The bill of exceptions was presented and signed too late to serve any purpose of review of the main trial, but will serve the purpose of review of the action of the court in overruling the motion for new trial. Sorsby v. Wilkerson,
The review is restricted to the grounds stated in the motion for new trial.
The oral charge of the court does not appear in the transcript. On page 4 of the transcript the omission of the oral charge is thus accounted for: "The oral charge of the court not requested in this case." By express statutory command such jury instruction, as well as all special instructions given for either party, must be reproduced in the transcript. Acts 1915, p. 815. The failure to observe this requirement results in an incomplete record of the trial, that should, before submission, have been perfected by recourse to certiorari, if necessary. Where the oral charge is omitted from the transcript on appeal in a civil case, no error prejudicial to an appellant in refusing special requests for instruction is shown, unless the contrary appears; the presumption being indulged that the oral charge substantially covered the subject of such refused special request for instruction. Rule 45 S.C. Prac., 175 Ala. xxi, 61 South ix. In the present instance, no error prejudicial to appellant can be pronounced of the court's refusal of special request numbered 1, refused to appellant, and made the fourth ground of the motion for new trial. The other grounds, 1, 2, and 3, are without merit. There was evidence designed to invite and justify the verdict; hence the judgment and verdict was not "contrary to the law and the evidence." The plaintiff testified *377
that defendant (appellant) "asked me [plaintiff] would I release Mr. Alsobrook [to whom the account for services to Harvey Gay or his family was charged on plaintiff's books] and charge it to him" (defendant); that plaintiff later credited Alsobrook's account with the amount of Harvey Gay's account and charged the same to defendant's account; and that a statement of the whole account, including defendant's personal as well as tenant items, was subsequently sent to defendant, who, without any directions or restrictions as to the application of payment, made several payments to plaintiff. Notwithstanding C. A. Alsobrook's testimony — in which a character of denial, qualified in a way on cross-examination, was made — the indicated evidence given by the plaintiff made a jury issue of the inquiry whether Alsobrook was legally indebted to plaintiff for the services rendered Harvey Gay. Grounds 2 and 3 of the motion for new trial proceeded on the untenable theory that the undisputed evidence disclosed no legal, original obligation on Alsobrook to pay the plaintiff for the services to Harvey Gay. If there was such an obligation and plaintiff extinguished it on the consideration of defendant's (appellant's) promise to pay the amount thus binding Alsobrook, the defendant's promise was not within the statute of frauds. Underwood v. Lovelace,
In overruling the motion for new trial the trial court did not err to appellant's prejudice. The action of the court in so disposing of the motion was free from prejudicial error.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.