60 So. 418 | Ala. Ct. App. | 1912
The assignments of error in this case are based on the action of the lower court in granting appellee’s motion for a new trial in a case wherein the appellant was the plaintiff and recovered judgment against the appellee as the defendant in the trial court.
The case is submitted here on appellee’s motion to strike the bill of exceptions, on the ground that it is in violation of rule 32 of this court (Code 1907, p. 1526), and on the merits.-
The evidence set out in the bill of exceptions is not in narrative form, but is in the usual form of a stenographic report showing question and answer, and is in fact nothing more than a copy of the stenographic report. The appellant’s attorneys, in brief filed, analyze
In this case a motion is made and urgently insisted upon that the rule be enforced, while the Supreme Court applied and enforced that rule, under a very similar condition of the record, as shown by this case, in the case of Hester et al. v. Cantrell, supra, without a motion having been made or such action insisted upon, so far as shown by an examination of the record. Under such conditions the present case does not present anything authorizing an exception to be made in the application and enforcement of the rule. When once an exception is made in the enforcement of a rule, it is at once seized and insisted upon as the governing rule, and each party affected has no difficulty in persuading himself that his case is within the exception, and thinks it unjust, and a hardship to have the rule applied to his particular case. For this reason exceptions should be made only when the distinction and reason for doing so is plain and indubitable. No such case is presented in this instance, and the motion will be granted, and the bill, or what is termed in the transcript a bill of exceptions, is ordered stricken because in plain violation of the said rule.
The assignments of error- are predicated solely on the trial court’s granting the defendant’s motion for a new trial; and, even though we should refuse the appellee’s motion to strike the bill of exceptions, there is no judgment shown by the recitals in the transcript that would authorize a consideration of the errors assigned. The record proper shows no judgment of the court, entered as a record of the court below, granting the motion or setting aside the verdict in favor of the appellant. Set out in the transcript, just preceding the bill of exceptions, is the motion of appellee for a new trial, and at
Although this order should be deemed properly a part of the record, it is not sufficient to support an appeal under the rule declared in Chambers v. Morris, 144 Ala. 626, 39 South. 375, where it is said in the opinion rendered by the Supreme Court: “The judgment rendered in favor of the defendant was formal and sufficient, and, to accomplish the vacating and setting aside of the verdict and judgment, there must have been an adjudication by the court to that effect; otherwise the judgment remained intact. Where the judgment on the merits is in favor of the party appealing, and there is no formal order or judgment setting it a,side, it is obvious that there is nothing in the record prejudicial to the appellant, or upon which an appeal could be predicated by him.”
The judgment in favor of the appellant, based on the finding of the jury, is formal'and sufficient in this case, and there is no formal order or judgment annulling and setting aside the verdict and judgment on the merits shown by any part of the transcript. The purported
The wording of the statute (Code 1907, § 2846, as amended by the act approved April 5, 1911 [Acts 1911, p. 198]) possibly might seem to warrant a construction authorizing the judgment on the motion to be incorporated for review in the bill of exceptions, and the holdings are to that effect by the Supreme Court in Chambers v. Morris, 144 Ala. 626, 39 South. 375; Randall v. Worthington, 141 Ala. 497, 37 South. 594, and Henry v. Couch et al., 132 Ala. 570, 31 South. 463. But the later cases of the Supreme Court above cited hold contra, and require the record proper on appeal to show a transcript of a judgment of record in the lower court. Appellant cites Wilk v. Key, 117 Ala. 285, 23 South. 6, and So. Ry Co. v. Nelson, 148 Ala. 98, 92, 41 South. 1006, in support of the sufficiency of the judgment entry. In the latter case, in the opinion on application for rehearing, it will be seen that the distinction is drawn between
We have discussed this last proposition at such length because of appellant’s forceful presentation and urgent insistence that the discretion of the court should be exercised in not applying rule 82 to this case because of the hardship it would work. It will be seen from what we have said that, even though the bill of exceptions should not be stricken, the transcript does not contain a-sufficient judgment upon which to base the assignment of errors. The case, however, must be affirmed, because all errors assigned are predicated upon the bill of exceptions, which, on motion of appellee, is stricken because in violation of rule 32.
Affirmed.