Andrews v. May

• Citation: 277 Ala. 248,168 So.2d 619
• Decision Date: 05 November 1964
• Docket Number: 1 Div. 240
• Parties: R. T. ANDREWS, d/b/a Andrews Sheet Metal Shop, v. O. H. MAY et al., d/b/a May Supply Company.
• Court: Supreme Court of Alabama

Page 619

168 So.2d 619

277 Ala. 248

R. T. ANDREWS, d/b/a Andrews Sheet Metal Shop, v. O. H. MAY et al., d/b/a May Supply Company.

1 Div. 240.

Supreme Court of Alabama.

Nov. 5, 1964.

Mayer W. Perloff, Mobile, for appellant.

Moody & Higgins, Mobile, for appellees.

MERRILL, Justice.

This appeal is from 'the judgment of the Circuit Court of Mobile County, Alabama, rendered on April 8, 1964, and from the judgment of said Court denying the motion for new trial which was entered on April 17, 1964.'

The judgment on April 8 was actually two judgments, one for the appellees for $4,365.47 in a suit on an account, and the other a judgment for appellant for $800 on a plea of recoupment.

The assignments of error are:

'1. The judgment of the Court is contrary to the law of the case.

'2. The Court erred in denying the motion for a new trial.

'3. The judgment entered by the Court is contrary to the law.

'4. The verdict of the jury is contrary to the law.'

Assignments 1 and 4 have been held repeatedly to be without merit and to present nothing for review. Thomas v. Brook, 274 Ala. 462, 149 So.2d 809; Roan v. Smith, 272 Ala. 538, 133 So.2d 224; Morris v. Yancey, 272 Ala. 549, 132 So.2d 754; Bertolla & Sons v. Kaiser, 267 Ala. 435, 103 So.2d 736; Ex parte Noble, 267 Ala. 488, 102 So.2d 902; Thompson v. State, 267 Ala. 22, 99 So.2d 198; King v. Jackson, 264 Ala. 339, 87 So.2d 623.

Assignments of error 2, 3 and 4 are argued together and since assignment 4 is without merit, and the other two are not related to No. 4, they must fall before the rule that where unrelated assignments of error are argued together and one is without merit, the others will not be considered. N.A.A.C.P. v. State, 274 Ala. 544, 150 So.2d 677, and cases there cited.

Assignment No. 2 is, on its face, a proper assignment of error, and we have said that where the overruling of a motion for new trial is assigned as error, all questions of law and fact sufficiently set forth in the motion and argued on appeal are presented to this court for consideration. Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So.2d 921. This rule cannot help appellant here. The motion for a new trial contains eight grounds, six dealing with the verdict and two with the conduct of the jury or jurors. But the record before us does not contain a transcript of the evidence or any reference to any misconduct of the jury, so the overruling of the motion for new trial did not present anything for review in this court, and assignment of error 2 is also without merit.

In assigning errors, the appellant must specify the action of the trial court which he would have reviewed and revised, Thomas v. Brook, 274 Ala. 462, 149 So.2d 809; and only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal, Central of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290. Under the assignments of error in the instant case, and since unrelated assignments without merit were argued in bulk, nothing concerning the judgment of the court is presented for our review on the merits.

As already stated, the jury brought in separate verdicts, one for plaintiffs for $4,365.47, and one for defendant for $800 on his plea of recoupment, and separate judgments were entered on each of the verdicts. After the motion for new trial was overruled and the cause was appealed, counsel for appellant devised an ingenious plan to require appellees to pay appellant's attorney's fee. No supersedeas bond was filed when the cause was appealed, and counsel for appellant filed a petition to intervene, alleging that he had 'issued out a garnishment to enforce' the judgment of $800 in favor of his client on the plea of recoupment, and he claimed a lien for his...