Birmingham Waterworks Co. v. Justice, 6 Div. 111

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation204 Ala. 547,86 So. 389
Docket Number6 Div. 111
Decision Date21 October 1920
PartiesBIRMINGHAM WATERWORKS CO. v. JUSTICE.

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. [86 So. 390.]

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 discretion you
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15 practice notes
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...on that motion for a new trial that was granted the state, and also the decision granting the same. Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389; Stokes v. Hinton, 197 Ala. 230, 72 So. 503. For this failure appellant is not entitled to review the ruling of the trial court ......
  • Alabama Gas Co. v. Jones, 6 Div. 120.
    • United States
    • Supreme Court of Alabama
    • June 5, 1943
    ...and the judgment entry, matters which should, and appearing in the bill of exceptions, control. Birmingham Water Works v. Justice, 204 Ala. 547, 86 So. 389. [13 So.2d 875] This slight discrepancy in dates is, however, immaterial on the several facts more fully set out infra in the several r......
  • Ray v. Richardson, 2 Div. 241.
    • United States
    • Supreme Court of Alabama
    • May 13, 1948
    ...judgment unless so convinced. Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29 So.2d 298; Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389; Huckaba v. Hill, 209 Ala. 466, 96 So. 569; Southern R. Co. v. Smith, 221 Ala. 273, 128 So. 228; Winter & Loeb v. Judkins, 106 Al......
  • Mangino v. Todd, 8 Div. 123.
    • United States
    • Alabama Court of Appeals
    • December 4, 1923
    ...second, because the bill of exceptions does not include the judgment on the motion, and the case of Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389, is cited in support of appellees' position. The position of the appellees cannot be sustained with respect to this insistence. ......
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15 cases
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...on that motion for a new trial that was granted the state, and also the decision granting the same. Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389; Stokes v. Hinton, 197 Ala. 230, 72 So. 503. For this failure appellant is not entitled to review the ruling of the trial court ......
  • Alabama Gas Co. v. Jones, 6 Div. 120.
    • United States
    • Supreme Court of Alabama
    • June 5, 1943
    ...and the judgment entry, matters which should, and appearing in the bill of exceptions, control. Birmingham Water Works v. Justice, 204 Ala. 547, 86 So. 389. [13 So.2d 875] This slight discrepancy in dates is, however, immaterial on the several facts more fully set out infra in the several r......
  • Ray v. Richardson, 2 Div. 241.
    • United States
    • Supreme Court of Alabama
    • May 13, 1948
    ...judgment unless so convinced. Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29 So.2d 298; Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389; Huckaba v. Hill, 209 Ala. 466, 96 So. 569; Southern R. Co. v. Smith, 221 Ala. 273, 128 So. 228; Winter & Loeb v. Judkins, 106 Al......
  • Mangino v. Todd, 8 Div. 123.
    • United States
    • Alabama Court of Appeals
    • December 4, 1923
    ...second, because the bill of exceptions does not include the judgment on the motion, and the case of Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389, is cited in support of appellees' position. The position of the appellees cannot be sustained with respect to this insistence. ......
  • Request a trial to view additional results

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