Barnett v. Patillo
| Citation | 33 Ala.App. 599,36 So.2d 450 |
| Decision Date | 11 May 1948 |
| Docket Number | 6 Div. 585. |
| Parties | BARNETT v. PATILLO. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 1, 1948.
W Marvin Scott, of Cullman, for appellant.
Herman J. Stewart, of Cullman, for appellee.
The appeal record in this case is incomplete. On this account, we are precluded from reviewing many of the questions presented by assignments of error and insisted upon in brief of counsel.
The original complaint contains two counts. There appear a motion to dismiss the cause of action and a motion to strike the motion to dismiss. Apparently, the court made no ruling on either of these, if so it is not shown in the record.
To the original complaint the defendant filed what he denotes 'Plea in Bar,' which is stated in form of demurrers. Plaintiff's demurrers thereto were correctly sustained.
At a subsequent date the plaintiff amended his original complaint by adding in lieu thereof Counts 1-A and 2-A, and by separate paper he amended by striking the name of Gerdis Barnett as a party defendant.
We note in the judgment entry that the court overruled the demurrers to the amended complaint, but the demurrers do not appear anywhere in the record. We have, therefore, nothing before us to review.
For guidance in the future, we call attention to the fact that the judgment entry is a mere copy or recital of the judge's bench notes.
The trial resulted in a verdict in favor of the plaintiff.
The only question to which we can respond is raised by the defendant's motion for a new trial.
When the jury retired to deliberate, it went into a room in which two army or navy recruiting officers had headquarters. The two men remained in the same room with the jury throughout the period of its deliberations. This irregularity was admitted on the hearing of the motion for a new trial. It was also agreed that the attorneys who represented the parties in the cause were not aware of this fact.
One of the recruiting officers testified when the motion was heard. He stated in effect that the two men in question were present in the room, but neither of them at any time engaged in conversation with any members of the jury.
Due to the fact that the exact occurrence about which complaint is made is so very unusual and rare, we have encountered difficulty in finding a case bearing factual similarity.
We must, therefore, make decision in the light of and by the guidance of the general applicable rule.
It is clearly stated in 16 Am. & Eng. Encyc.Law 519 (Emphasis ours.) See also Kansas City, M. & B. R. Co. v. Phillips, 98 Ala. 159, 13 So. 65.
Much emphasis and elaboration are given the doctrine in Craig & Co. v. Pierson Lumber Co., 169 Ala. 548, 53 So. 803 805. There we observe: ...
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Gregg v. State
...Ala. 458, 65 So. 402; Pollard v. Williams, 238 Ala. 391, 191 So. 225; Driver v. Pate, 16 Ala.App. 418, 78 So. 412; and Barnett v. Patillo, 33 Ala.App. 599, 36 So.2d 450. In Orr v. State, 269 Ala. 176, 177, 111 So.2d 639, a trial judge's reference to the public expense was in at least one of......
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Dillard v. Ackerman
...evil principle." There is no Kentucky case squarely on all fours with the case under consideration. An Alabama case, Barnett v. Patillo, 33 Ala.App. 599, 36 So.2d 450 (1948), is in point, however. There the jury retired to deliberate in a room which was also used as the office of two Army-N......
- Baker v. State, 5 Div. 254.
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Barnett v. Patillo, 6 Div. 758.
...W. E. Patillo for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Barnett v. Patillo, 36 So.2d 450. stricken. STAKELY, Justice. This petition for certiorari is due to be stricken for failure of observance of Supreme Court Rule 3......