Brazel v. New South Coal Co.

Decision Date26 November 1901
Citation30 So. 832,131 Ala. 416
PartiesBRAZEL ET AL. v. NEW SOUTH COAL CO.
CourtAlabama Supreme Court

Appeal from circuit court, Walker county; Jas. J. Banks, Judge.

Action by W. T. Brazel and others against the New South Coal Company. Verdict for plaintiffs. From an order granting a motion in arrest of judgment, plaintiffs appeal. Dismissed.

Upon the trial of the cause the jury returned a verdict in favor of the plaintiffs. After the return of the verdict, but before judgment, the defendant made a motion in arrest of judgment upon the ground that the verdict of the jury was too indefinite to support a judgment, and the description of the property in the complaint was too indefinite to support a judgment. The court sustained this motion, and entered a decree accordingly. From this decree the present appeal is prosecuted.

Norvell & Smith, for appellants.

Coleman & Bankhead, for appellee.

TYSON J.

This is an appeal prosecuted from a judgment granting a motion in arrest of judgment. Section 434 of the Code provides for appeals whenever a motion for a new trial shall be granted or refused by any circuit or city court. Motions in arrest of judgment do not come within its provisions, and the right of appeal in this case must find its support outside of this statute. The effect of the granting of the motion was to restore the cause to the docket for such further proceedings as the parties litigant may see proper to take. After this motion was granted, all pleadings may be amended, and a new trial had, without restriction or prejudice on account of any ruling or order made on the previous trial. In other words the cause can be tried de novo. Its status and the law governing it in respect to an appeal cannot, on principle, be distinguished from the condition of a cause where a rehearing is granted after final judgment at a subsequent term under section 3341 et seq. of the Code. In such cases the rule in respect to appeals to this court is clearly stated in O'Neal v. Kelly, 72 Ala. 559, as follows "To remove all uncertainty, in Ex parte North, 49 Ala 385, following the earlier decisions, it was announced that from a judgment refusing the application for a rehearing an appeal would lie, because the judgment is final, disposing of the case, but, if the application was erroneously granted the order granting it was not a final judgment,-its effect was, not a disposition of the case, but its restoration...

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16 cases
  • Ex parte Haisten
    • United States
    • Alabama Supreme Court
    • June 22, 1933
    ... ... court here reviewed. Ex parte Parker, 172 Ala. 136, 54 So ... 572; Brazel v. New South Coal Co., 131 Ala. 416, 30 ... So. 832; Hershey Chocolate Co. v. Yates et al., 196 ... ...
  • Lokey v. Ward
    • United States
    • Alabama Supreme Court
    • May 10, 1934
    ... ... 183, 149 So. 213; Ex parte ... Parker, 172 Ala. 136, 54 So. 572; Brazel v. New South ... Coal Co., 131 Ala. 416, 30 So. 832; Hershey ... Chocolate Co. v. Yates, et al., ... ...
  • Edge v. Bonner
    • United States
    • Alabama Supreme Court
    • June 19, 1952
    ...petition that he has a prima facie right to such relief. Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Brazel v. New South Coal Co., 131 Ala. 416, 30 So. 832; Central of Georgia R. R. Co. v. Carlock, 196 Ala. 659, 72 So. 261; Ex parte State ex rel. Denson, 248 Ala. 161, 26 So.2d The ac......
  • Kolb v. Swann Chemical Corporation
    • United States
    • Alabama Supreme Court
    • March 30, 1944
    ... ... action of the court here reviewed. Ex parte Parker, 172 Ala ... 136, 54 So. 572; Brazel v. New South Coal Co., 131 ... Ala. 416, 30 So. 832; Hershey Chocolate Co. v. Yates et ... al., ... ...
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