Stokes v. Hinton

72 So. 503 | Ala. | 1916

THOMAS, J.

(1) The appeal is taken from a judgment granting a new trial, rendered on April 16, 1915. The amended statute, therefore, has no application to this appeal. — Gen. Acts 1915, p. 722.

(2-5) The rule declared by this court for presenting for review the judgment of the trial court granting or refusing a motion for a new trial is as follows: (1) Where the motion is overruled, no right is disturbed and no formal judgment on the motion is necessary. In such case, the ruling of the court denying the motion must be shown by the bill of exceptions, together with the fact that exception was reserved thereto. The original judgment, however, must appear as a part of the record proper.— So. Ry. Co. v. Nelson, 148 Ala. 88, 41 South. 1006; Turner v. Spragins, 172 Ala. 98, 55 South. 118. (2) Where the motion is granted and the status of the original judgment is disturbed, a formal judgment is necessary on said motion, granting the new trial, which judgment must be shown by the record proper. — . Ex parte Doak, 188 Ala. 406, 413, 66 South. 64; Irby v. Kaigler, 6 Ala. App. 91, 95, 60 South. 418. (3) Whether the motion is overruled or granted, the exception taken to such ruling of the court must be presented for review by the bill of exceptions. (4) The motion for a new trial must be presented by the bill of exceptions.

The opinion in Kreamer v. Jackson L. Co., 179 Ala. 225, 60 South. 88, would seem to require that both the motion and the judgment thereon be included in the bill of exceptions, in order that the ruling of the court granting a new trial may be reviewed. The statute does not require that such formal judgment be made a part of the bill of exceptions, but only the motion. In the Kreamer Case, the question for decision was the establishment of a bill of exceptions, and it was there said that the trial judge is not required to sign the purported bill of exceptions when it does not contain the motion and the judgment thereon. It was not there intended to be decided that such formal judgment on the motion may be presented for review by the bill of exceptions, rather than by its incorporation as a part of the record proper. Similarly, the expression in Randall v. Worthington, 141 Ala. 498, 37 South. 594, is an inapt statement of the rule. It was to the effect that, on an appeal from a judgment granting a new trial, “the judgment should appear either in the transcript of the record proper or be set out in the bill of exceptions.” That case is modified to conform to the statement of the rule as herein contained.

After a careful consideration of the action of the court on the motion, we are of the opinion that the evidence clearly and palpably supports the ruling of the trial court.

It follows that the pudgment must be affirmed.

Affirmed.

Anderson, C. J., McClellan, Mayfield, Somerville, and Gardner, JJ., concur. Sayre, J., not sitting.