Mobile & Birmingham R. R. v. Louisville & Nashville Railroad

54 So. 1002 | Ala. | 1911

Lead Opinion

McCLELLAN, J.

The appeal is from an order granting a new trial. Among the grounds therefor was this: “Because, while viewing the premises, the judge allowed the witness Miller, in conversation with said judge, to review and argue the evidence on many of the material questions in controversy, and to point out and explain matters, some of which said witness was not competent to testify to, and others of which related to matters to which objection had been sustained during the trial, which said statements by said witness to the judge were made in such manner and under such circumstances that no report thereof could be made by the official stenographer, and no proper ohjection could be taken thereto by the attorneys in the cause, all as shown by an affidavit herewith filed.”

The bill of exceptions, in the particular that it refers to the motion for new trial, does not purport to contain all of the evidence offered before the court on the hearing of the motion. In such state of the case, the presumption must be and is indulged that there was evidence before the court justifying its conclusion, and ■the granting of the motion on the ground quoted.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.

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Rehearing

On Rehearing.

PER CURIAM.-

The insistence of counsel for appellant that this court proceed to a determination of the more material questions involved in this controversy, rather than that the decision should be rested on the proposition stated in the opinion, is a matter which was considered by the court on the original hearing. The investigation of those questions, as presented by the record and assignments of error, was thoroughly made by the Justice to whom the appeal was assigned for the preparation of an opinion thereon for submission to the consultation of the court; but, since the result (affirmance) was inevitable on the ground stated in the opinion on original hearing, and since it could not be certainly anticipated (for the new trial to follow) what view the trial court would take on these questions, it was determined not to undertake, in advance, to lay out a course of procedure to be followed in the further progress of the litigation.

There was not, nor is, any confession of reversible error by or for appellee in any particular. To the contrary, counsel for appellee, in Ms argument at the bar, called attention to the state of' the bill of exceptions, from which the affirmance must, as ruled, result. But if it had been or were otherwise, the rule of waiver in respect to errors assigned in this court has no application to an appellee.' The presumption, in favor of the rulings of the trial court, of the absence of error, creates the obligation on an appellant to show error by that tribunal. And on review of the action of the trial court in sustaining a motion for new trial, the obligation is on the appellant to exclude the reference of the ruling for correctness, in sustaining the motion, to any one or more of the grounds thereof. — Central Iron Co. v. Thompson, 165 Ala. 548, 51 South. 608; Choate v. A. G. S. R. Co., 170 Ala. 590, 54 South. 507.

The rehearing is denied.