Atlantic Coast Line R. Co. v. Burkett

• Decision Date: 20 April 1922
• Docket Number: 4 Div. 981.
• Parties: ATLANTIC COAST LINE R. CO. v. BURKETT.
• Court: Alabama Supreme Court

92 So. 456

207 Ala. 344

ATLANTIC COAST LINE R. CO. v. BURKETT.

4 Div. 981.

Supreme Court of Alabama

April 20, 1922

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by B. F. Burkett against the Atlantic Coast Line Railroad Company, for damages for killing a cow. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Arrington & Arrington, of Montgomery, and Farmer, Merrill & Farmer, of Dothan, for appellant.

Harry K. Martin, of Dothan, for appellee.

MILLER J.

This is a suit by B. F. Burkett against the Atlantic Coast Line Railroad Company for damages for negligently killing his cow. There was judgment for plaintiff on November 10, 1920, for $132.40.

On December 9, 1920, which was within 30 days after the date of the judgment, the defendant filed motion to set aside the verdict and judgment, because (1) the verdict was contrary to the evidence, (2) the verdict was contrary to the law, and (3) the verdict was contrary to the law and evidence in said cause. Section 3 of an act approved September 22, 1915, reads in part:

"After the lapse of thirty days from the date on which a judgment or decree was rendered the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day." Section 3, Gen. Acts 1915, p. 708.

On December 17, 1920, more than thirty days after the date of the judgment, the defendant filed five separate, distinct and additional grounds to the foregoing motion to set aside the judgment. There is no order of the court allowing these amendments to the motion. Their allowance as an amendment would have been improper. They were filed too late. They were not germane to either one of the three original grounds assigned in the original motion. These new and additional grounds for granting the motion will not be considered by this court. Ferrell v. Ross, 200 Ala. 90, 75 So 466; Sorsby v. Wilkerson (Ala. Sup.) 89 So. 657.

The court overruled the motion on April 28, 1921. The bill of exceptions was presented to the trial judge July 18, 1921. This was within 90 days after judgment on the motion; but it was more than 90 days after date of the original judgment. It was approved by him September 3, 1921. Hence the bill of exceptions can be considered and looked to only to review and pass on the matters mentioned in the motion, with its three grounds as originally filed, and the errors assigned and based thereon. The bill of exceptions purports on its face to have been presented to the trial judge only on the proceedings before him on the hearing of the motion. Sections 3019, 3020, Code 1907; Sorsby v. Wilkerson (Ala Sup.) 89 So. 657; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Cassells' Mill v. Strater Bros., 166 Ala. 274, 51 So. 969.

The refusal of the court to grant the motion to set aside the verdict and judgment is assigned as error by the appellant. This motion is based really on only two grounds: The verdict was contrary to the evidence and contrary to the law in the cause. This is for the consideration of this court. We have read the evidence, and it is amply sufficient to sustain...