Alabama Gas Co. v. Jones

• Decision Date: 05 June 1943
• Docket Number: 6 Div. 120.
• Citation: 244 Ala. 413,13 So.2d 873
• Parties: ALABAMA GAS CO. v JONES.
• Court: Alabama Supreme Court

13 So.2d 873

244 Ala. 413

ALABAMA GAS CO. v JONES.

6 Div. 120.

Supreme Court of Alabama

June 5, 1943

London & Yancey, Geo. W. Yancey, and Fred G Koenig, Sr., all of Birmingham, for appellant.

Reuben H. Wright, of Tuscaloosa, for appellee.

THOMAS Justice.

The submission was had on the motion and on the merits. The statutes affecting the time in which a bill of exceptions may be perfected and as extended by a motion for a new trial duly made, the attention of the court being called thereto, have been recently considered in In re Pate v. State (Ex. parte State of Alabama ex rel. Attorney General), Ala.Sup., 14 So.2d 251; Code 1940, T. 7, § 822, T. 13, § 119, Acts 1939 p. 167.

The two statutes in question are Code 1940, T. 7, § 214, and T. 7, § 764. It is to be noted that the statute last cited comes from the Act of 1915, p. 722, without change, and that many decisions are to be found in our reports touching the same. It is further necessary to observe that § 214 is a codification of the Act of 1915, p. 598, with material change, namely, the original statute begins that "All motions which are made in writing in any circuit court or any court of like jurisdiction in any cause or procedure" at law shall become a part of the record upon an appeal. As codified said section reads: "All motions, including motions of a new trial, which are made in writing in any circuit court or any court of like jurisdiction in any cause or proceeding at law, shall, upon an appeal become a part of the record; and the ruling of the court thereon shall also be made a part of the record; and it shall not be necessary for an exception to be reserved to any ruling of the court upon any such motion; and it shall constitute a part of the record proper on appeal." [Italics supplied.]

It is unnecessary to review the many decisions cited in brief of counsel preceding the change in the statute hereinabove set out. In Delbridge v. State, 242 Ala. 677, 8 So.2d 160, the two statutes were considered to the effect that where the motion for a new trial was based on affidavits of newly discovered evidence, the ruling thereon could not be considered by the reviewing court in the absence of a bill of exceptions; that where the motion for new trial is based merely on the status of the record proper, it is unnecessary to reserve an exception to the court's ruling on the motion, and the bill of exceptions is not required to present the ruling for review; but if the motion is rested on matters extraneous to the record, the court's decision should be included in the bill of exceptions and the exception duly reserved. Thus the two statutes were construed as a part of a system which has application to the record and bill of exceptions before us, and to which ruling we adhere.

The decisions in Harris v. Barber, 237 Ala. 138, 186 So. 160, and authorities cited, and in Stokes v. Hinton, 197 Ala. 230, 72 So. 503, and in Batson v. State, 216 Ala. 275, 278, 113 So. 300 adverted to by counsel in argument, were under the original statute before amendment in the Code of 1940, T. 7, § 214 supra.

The judgment of the court on the motion further recites that on said date (December 11, 1942), the parties being present, the court heard the motion and after argument took the "same under advisement." In this connection the bill of exceptions recites that the motion was filed and presented on November 17, 1942, and passed to the 11th day of December, 1942, on which latter date it was heard. It is insisted that such recital in the bill of exceptions is not affected by the mere detailed statement of the facts in the judgment or the record proper. If it be said to be a conflict between the record proper and the bill of exceptions, the latter would prevail, in that the motion was heard on extraneous evidence. It is the rule that if there is such conflict between the bill of exceptions and the judgment entry, matters which should, and appearing in the bill of exceptions, control. Birmingham Water Works v. Justice, 204 Ala. 547, 86 So. 389.

This slight discrepancy in dates is, however, immaterial on the several facts more fully set out infra in the several recitals in the judgment and in the bill of exceptions. After all that may be said, on December 11, 1942, the date the motion coming on to be heard, the parties being present in person and by their attorneys in open court, the motion was heard and the court "took the same under advisement."

On "December 18, 1942," the judgment entry recites, "The court having taken this motion under advisement on December 11, 1942, and now after considering said motion as last amended, the evidence in support thereof, and the arguments of counsel, the court is of the opinion that the same is not well taken and should be overruled. It is, therefore, considered by the court and it is the order and judgment of the court that the defendant's motion to set aside the verdict of the jury and the judgment of the court rendered thereon and to grant this defendant a new trial in this cause be and it is hereby overruled. The defendant then and there in open court duly and legally excepted to the action of the court in overruling said motion."

The bill of exceptions contains the further recitation: "Thereafter on, towit, the 17th day of November, 1942, the defendant presented to the court a motion for a new trial, which motion appears as a part of the record in this cause on appeal and made a part hereof as fully as if set out herein, and which said motion was by the court duly marked presented and filed, and passed for hearing to the 11th day of December 1942 on which date the said motion for a new trial filed in behalf of the defendant was heard by the court, and on the hearing of said motion the defendant introduced, in support thereof, all the testimony introduced on the trial of the case, and the following additional testimony, towit: * * *."

Then followed pages of proceedings on the motion, testimony of the witnesses who had testified on the trial, the cross-examination, and the testimony of counsel (who had participated in the examination of witnesses on the original hearing) was introduced on the motion. There was also the affidavit of plaintiff as answer to the motion for new trial in which the matters that occurred on the trial were set out at length, and all of which was in the breast of the court. The concluding statement in the bill of exceptions is: "That on said date, towit, the 11th day of December, 1942 the motion for a new trial, filed in behalf of the defendant, was argued and submitted to the court and taken under advisement by the court; and thereafter on, towit, December 18th, 1942 the court made and entered an order on the motion for a new trial filed by the defendant to set aside the verdict of the jury and the judgment of the court rendered thereon overruling said motion, to which action of the court the defendant then and there duly and legally reserved an exception. * * *."

As to the main trial the bill of exceptions recites:

"Thereupon the plaintiff rested.

"Thereupon the defendant rested.

"The foregoing was all the testimony and evidence introduced upon the trial of this case. Thereupon the court orally charged the jury, which said charge appears as a part of the record in this cause on appeal, and will appear in the record. * * *."

No such recitation is contained in the bill of exceptions touching the motion for a new trial and which said motion was overruled. Appellee says it affirmatively appears: That on the motion for new trial appellant introduced the reporter's transcript of evidence; that the same is not set out in the bill of exceptions; that it is definitely disclosed the supreme court cannot have all before it that the trial court had when passing on said motion; and hence there was no efficacious motion that extended the time within which the bill of exceptions could be signed, after the original judgment. This is not the rule in our jurisdiction. In re Pate v. State (Ex Parte State), Ala.Sup., 14 So.2d 251.

The defendant-appellant's counsel offered to introduce on the motion for new trial the transcript of evidence of the court reporter of testimony and evidence which occurred on the original trial. This was in the breast of the court. The material parts of said transcript of evidence were set out in the bill of exceptions which concluded with the recital "The foregoing was all the testimony and evidence introduced on the main trial." The fact that there is no such categorical recital in the...