Birmingham Waterworks Co. v. Justice

• Decision Date: 21 October 1920
• Docket Number: 6 Div. 111
• Citation: 204 Ala. 547,86 So. 389
• Parties: BIRMINGHAM WATERWORKS CO. v. JUSTICE.
• Court: Alabama Supreme Court

86 So. 389

204 Ala. 547

BIRMINGHAM WATERWORKS CO. v. JUSTICE.

6 Div. 111

Supreme Court of Alabama

October 21, 1920

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

Action by A.G. Justice against the Birmingham Waterworks Company for damages for wrongfully cutting off plaintiff's water service. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 450 Acts 1911. Affirmed.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellant.

Stallings & Drennen, of Birmingham, for appellee.

SOMERVILLE J.

The minute entry, which is a part of the record proper, shows, notwithstanding an obvious ellipsis, that defendant's motion for a new trial was granted on the ground of excessiveness of the verdict, but upon the condition only that plaintiff failed for 20 days to enter a remittitur of $250 of the damages awarded.

The minute entry, however, is contradicted by the recitals of the bill of exceptions, which show that the motion "was overruled."

Where there is a conflict between the record proper and the bill of exceptions, the former controls as to matter which should appear by the record proper, and the bill of exceptions controls as to matter which should appear by the bill. C. of Ga. Ry. Co. v. Gross, 192 Ala. 354, 68 So. 291; Johnson v. Cox, 198 Ala. 563, 73 So. 922. Under the act of 1915 (Acts 1915, p. 722), changing the rule and practice as declared in Stokes v. Hinton, 197 Ala. 230, 72 So. 503, not only the motion for new trial, but also the decision granting or refusing it, must be included in the bill of exceptions. Hence, the bill of exceptions being the vehicle by which the decision on the motion must be presented to the appellate court, its recitals as to that decision must be accepted as conclusive on appeal. It follows, of course, that the minute entry cannot be considered as showing that the motion was granted conditionally, or that it remains undisposed of in the lower court; and the appeal from the original judgment cannot, therefore, be dismissed.

Our examination of the testimony persuades us that the issue of defendant's liability was properly submitted to the jury, and the affirmative instructions requested by defendant properly refused.

Defendant excepted to the following portion of the oral instructions to the jury:

"He [plaintiff] would be entitled to such sum as in your sound judgment and

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