375 F.2d 889 (5th Cir. 1967), 23088, Cockrell v. Ferrier

Docket Nº:23088.
Citation:375 F.2d 889
Party Name:Hubert L. COCKRELL and Mrs. Hubert L. Cockrell, Appellants, v. George A. FERRIER and Melton Truck Lines, Appellees.
Case Date:April 18, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 889

375 F.2d 889 (5th Cir. 1967)

Hubert L. COCKRELL and Mrs. Hubert L. Cockrell, Appellants,

v.

George A. FERRIER and Melton Truck Lines, Appellees.

No. 23088.

United States Court of Appeals, Fifth Circuit.

April 18, 1967

George S. Brown, Birmingham, Ala., Roscoe B. Hogan, Birmingham, Ala., for appellants.

Charles E. Sharp, Birmingham, Ala., Sadler, Sadler, Sullivan & Sharp, Birmingham, Ala., for appellees.

Before COLEMAN and DYER, Circuit Judges, and ESTES, District Judge.

DYER, Circuit Judge.

Each of the Cockrells sued Ferrier and Melton Truck Lines jointly for personal injuries received in an automobile accident. The cases were consolidated for trial and the jury returned a verdict for the defendants.

Although at the conclusion of the court's oral charge no objection was made by the plaintiffs, they now, for the first time on appeal, claim error in the court's charges. The plaintiffs assert that they were not afforded an opportunity by the District Court to object.

After notice of appeal was filed, the trial judge made and included in the record, over plaintiffs' objection, a certificate in which he described the events that transpired after his charge to the jury. 1

Page 890

The transcript discloses only that, after the judge charged the jury, he told them, 'I am going to ask the clerk to get together the exhibits * * * and you may retire and consider your verdict,' and that defendants' counsel then took exceptions to the charges. The Judge's certificate makes it clear, however, that at the time defendants made their exceptions plaintiffs were present and made no objections, and at that time the jury had not yet actually retired to consider its verdict, but rather was waiting on a stairway outside the courtroom in charge of the clerk. After the trial judge overruled defendants' objections, he instructed the clerk to take the jury to the deliberating room to begin its deliberations.

Plaintiffs contend that we are barred from considering what actually transpired because we cannot take cognizance of the trial judge's certificate. It is insisted that 'The record on appeal cannot be varied, added to, or explained by, a statement or certificate of the judge before whom the case was tried.' 4A C.J.S. Appeal and Error, 779, p. 648; United States Fidelity & Guaranty Company v. International Brotherhood, 1958, 40 Ala.App. 452, 115 So.2d 42; Scroggins v. Alabama Gas Corporation, 1963, 275 Ala. 650...

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