58 So. 790 | Ala. Ct. App. | 1912
Lead Opinion
The appeal is from an order or judgment of the court overruling the motion of the defendants for a new trial. It is urged in argument that the motion should have been granted because of a variance between the allegations of the complaint and the evidence offered in support of them, in that-the complaint counted on joint causes of action against the defendants, while the evidence offered in support of it was as to a several cause of action against one of them alone. The court was forbidden by statute (Code, § 5362) to charge upon the effect of the testimony, unless required to do so by one of the parties. The defendants did not request such charge, but permitted the evidence to go to the jury without objection. In no way was the question, of a variance called to the attention of the trial court. It was not even raised in the motion for a new trial, conceding that it would have been in time if then first suggested. In now urging that a new trial should have been granted because of the alleged variance, the appellants are suggesting a ground for setting aside the result of the trial which might not have existed but for their own failure to avail themselves of the opportunity to present the question before the case went to the jury. A party is not entitled to another trial to enable him to
The ground of the motion suggesting newly discovered evidence was not sustained. The showing made was as to what one Troy would depose to in reference to a transaction to which one of the defendants was a party, and which, in part at least, was in his presence. It is not made to appear that before the trial the defendants were uninformed as to what testimony might be expected from the proposed witness, or that they made any effort to procure his attendance.—McLeod v. Shelly Manufacturing & Imp. Co., 108 Ala. 81, 19 South. 326.
The remaining ground of the motion was “because the jury considered evidence that was not offered in the trial of the case.” In the trial the defendants offered in evidence an account against the plaintiff as entered on page 278 of a ledger. The plaintiff offered evidence tending to show that the articles charged on that account were bought, not by the plaintiff, but by one W. T. Brightman. For the purpose of supporting an inference that the jury considered evidence that was not offered in the trial, the defendants offered in evidence this pencil mmorandum, “W. T. B. a/c 178,” found immediately below the account on page 278 of the ledger, an account against W. T. Brightman on page 178 of the
It has not been made to appear that the court was in error in overruling the motion for a new trial.
Affirmed.
Rehearing
In the brief submitted in support of the appellants’ application for a rehearing in this case, the attention of the court is called to the decision in the case of Wilkinson et al. v. King, 81 Ala. 157, 8 South. 189, and the claim is made that it Avas decided in that case that a question of variance betAveen the pleadings and the evu deuce may be raised on appeal, though no such question was in any Avay raised in the trial court. This claim cannot be sustained. In that case the plaintiff’s' request of the written charge which was given raised the question of his right to recover if the jury believed from the evidence that the fact hypothesized in that charge was established. The giving of that charge was held to have been error because the evidence as to the fact hypothesized in the charge did not correspond Avith the averments of the complaint as to such fact. The court referred to the question of variance on which the decision of the case by the reviewing court turned, as one “Avhich appears to have escaped observation in the court belowbut by no means did it intimate that that question had not properly been raised in the trial court. The report of the case shows distinctly that it was raised by a request for a charge, which on the appeal Avas held, because of such variance, to have been improperly given.
What Avas said in the foregoing opinion in reference to a question of variance between the averments and the proof being one which should be raised in the trial court, and not on appeal for the first time, was not the statement of a proposition Avhich is novel in this state. Certainly it is no more incumbent upon a plaintiff in a civil suit to support the averments of his complaint by evidence corresponding with, not variant from, them,
There is nothing in the record in this case to show that while it was pending in the trial court the question pf variance now urged as a ground of reversal escaped the observation of the appellants or their counsel. Fdr anything that is made to appear by the record, the defendant who was shown by evidence to be liable to the plaintiff on a several obligation may have been aware that evidence to that effect'did not correspond Avith and
Application for rehearing overruled.