Alabama M. Ry. Co. v. Brown

• Decision Date: 12 February 1901
• Citation: 29 So. 548,129 Ala. 282
• Parties: ALABAMA M. RY. CO. v. BROWN.
• Court: Alabama Supreme Court

29 So. 548

129 Ala. 282

ALABAMA M. RY. CO. v. BROWN.

Supreme Court of Alabama

February 12, 1901

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by J. M. Brown, as administrator of the estate of J. L Brown, deceased, against the Alabama Midland Railway Company to recover for the negligent killing of plaintiff's intestate. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

The complaint contained two counts, in which the plaintiff sought to recover $25,000 damages. The defendant interposed demurrers to each of the counts of the complaint. The judgment entry as to the rulings of the court upon these demurrers was as follows: "And the defendant demurs to the complaint, which demurrer, being argued by counsel and understood by the court, is hereby overruled." The defendant pleaded the general issue and several special pleas, in which it sought to set up facts showing that neither the defendant nor its employés were guilty of negligence at the time of the accident which resulted in the death of plaintiff's intestate. There were demurrers interposed by the plaintiff to these several special pleas. The judgment entry relating to the rulings of the court upon these demurrers was as follows: "The plaintiff thereupon demurs to pleas numbered ***, which demurrers are sustained by the court." Under the decision on the present appeal it is unnecessary to set out the facts in detail. The jury returned a verdict assessing the plaintiff's damages at $5,373.24, for which amount judgment was rendered. Thereupon the defendant made a motion for a new trial, which was in words and figures as follows: "Now comes the defendant and doth move for a new trial in said cause, and for the court to set aside and vacate said judgment: 1st. The verdict was contrary to law. 2d. The verdict was contrary to the facts. 3d. The court erred in refusing the charge requested by the defendant in writing, namely, charge No. 2, or charge No. 1, or charge No. 4, or charge No. 7, or charge No. 8, or charge No. 15, or charge No. 16, or charge No. 16 1/2, or charge No. 17, or charge 18, or charge No. 20, or charge No 21, or charge No. 22, or charge No. 23, or charge No. 24. 4. The court erred in its exclusion of testimony against the objection of defendant. 5. The court erred in its refusal to exclude testimony against the objection of defendant. 7. Said verdict is excessive." This motion for a new trial was overruled, and to this ruling the defendant duly excepted. Defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. In this court a motion was made to strike the bill of exceptions from the file on the ground that said bill of exceptions was signed after the adjournment of the court for the term during which the judgment in the cause was rendered, without any order being made by the court allowing said bill of exceptions to be signed after said adjournment, and no agreement of counsel in writing was made to such fact as by law required. The record discloses the following facts: The suit was brought on September 7, 1896. Judgment was rendered in favor of the plaintiff on October 19, 1898. On January 2 1899, a motion was made for a new trial. On February 17 1899, the motion for a new trial was continued, and the court adjourned without making any order extending the time for the presentation of the bill of exceptions, or an order that such bill of exceptions could be signed after adjournment, and there was no agreement between the counsel in the case of such fact. The record shows that on April 1, 1899, the motion for a new trial was overruled, that on May 1, 1899, the bill of exceptions was filed with the clerk of the court, and on June 12, 1899, the judge signed said bill of...