Central of Georgia Ry. Co. v. Ashley

• Decision Date: 11 February 1909
• Parties: CENTRAL OF GEORGIA RY. CO. v. ASHLEY.
• Court: Alabama Supreme Court

48 So. 981

159 Ala. 145

CENTRAL OF GEORGIA RY. CO. v. ASHLEY.

Supreme Court of Alabama

February 11, 1909

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by F. E. Ashley against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The only counts that are referred to in the opinion and necessary to be here set out are the fifth, sixth, and seventh counts which are as follows:

"(5) Plaintiff claims of the defendant the sum of $1,999 as damages, for this: That heretofore, on, to wit, the 15th day of September, 1904, the defendant was engaged in operating by steam a railway as a common carrier of passengers from the city of Montgomery, in the state of Alabama, to various points in the state of Georgia and in the state of Alabama. And plaintiff avers that she bought a ticket at the Union Station in the city of Montgomery Ala., to Andalusia, Ala., and that she was unfamiliar with the road of the defendant, and that the servant, agent employé, or conductor of the defendant called upon her for her ticket; that she showed the said servant, agent, employé, or conductor her said ticket; and that the servant, agent, or conductor, after inspecting the said ticket, did negligently fail to inform plaintiff that she would have to change cars at the town of Union Springs, in the state of Alabama, and take another car, so that she might reach her destination, and by reason of said negligence on the part of the said conductor, servant, agent, or employé of the defendant as aforesaid she was greatly injured, in this: It was in the nighttime, and plaintiff was put off at a strange place, to wit, Cuthbert, Ga., where she had to remain until the next day, so that she might take passage to said Union Springs, and there change cars that she might reach her destination. And plaintiff avers that she was made sick and was greatly frightened, she suffered great mental anguish and physical pain, that it prevented her from filling an engagement she had at Andalusia, and that she was prevented from reaching her destination, all to her great damage as aforesaid of $1,999. And plaintiff avers that the damages claimed in this count are for the same cause of action that is claimed in the first, second, third, and fourth counts of this complaint."

(6) Same as count 1, down to and including "the city of Montgomery," where it first occurs therein, and adds: "To Cuthbert, in the state of Georgia; that along its said lines was the station in said state of Alabama called Union Springs; that from said Union Springs, Ala., ran another railway line operated by defendant to Andalusia, Ala., and that on said day and date plaintiff bought a ticket at Montgomery, Ala., to Andalusia, Ala., and became a passenger on one of the cars of the defendant; that in order to go from Montgomery, Ala., to Andalusia, Ala., on said ticket, plaintiff should change cars at Union Springs, Ala., and the defendant so negligently conducted its said business that by reason thereof plaintiff did not change cars at said Union Springs, Ala., but was carried beyond Union Springs, Ala., and by reason of said negligence she was greatly damaged, in this to wit: [Here follows catalogue of her special injuries and damages, same as in count 6.]"

(7) Same as count 6, except that it alleges that it was the duty of defendant, its servant, agent, or employé, to notify plaintiff that she should change cars at said Union Springs, Ala., for said Andalusia, Ala.; but, notwithstanding this duty, the defendant, or its servant, agent, or employé, did negligently fail to so notify plaintiff, and by reason thereof the plaintiff was carried beyond Union Springs, etc.

There was judgment for plaintiff in the sum of $500, which judgment was rendered on October 15, 1906. On Wednesday, November 14, 1906, and on December 14, 1906, an order was granted by the court extending the time for signing the bill of exceptions--in the first instance 30 days, and in the second instance 20 days; 30 days having been granted from the day of the judgment. On Saturday, December 29, 1906, the motion for a new trial was overruled, and the presiding judge of the court granted an order extending the time for filing the bill of exceptions 30 days, and a further order was entered by the presiding judge extending the time to and including February 7th.

Charles P. Jones, W. F. Thetford, Jr., and J. B. Jones, for appellant.

Hill, Hill & Whiting, for appellee.

McCLELLAN J.

The necessary continuity of the time, from the main trial to the date of the attempted authentication of the purported bill of exceptions for that trial, within which it should, to be effective, have been signed, was broken by the effort of the court, instead of the presiding judge, to extend it. Scott v. State, 141 Ala. 39, 37 So. 366; Arnett v. Western Ry. (Ala.) 39 So. 775; Western Ry. v. Russell, 144 Ala. 142, 39 So. 311, 113 Am. St. Rep. 24. Hence, so far as the main trial is concerned, the paper purporting to be a bill of exceptions thereon is valueless.

Counsel for appellant insist that this paper is at least a valid bill of exceptions to bring up for review the action of the court below in overruling the motion for a new trial. The motion was regularly retained on the proper docket of the court until December 29, 1906, on which date it was overruled. In the order overruling the motion the defendant (appellant) was granted 30 days in which to perfect its bill of exceptions on the motion for a new trial. On January 26, 1907, the presiding judge, as such, undertook to extend the time to February 7, 1907. The paper was in fact signed by the judge on February 6, 1907. By the act approved December 6, 1900 (Acts 1900-01, p. 122), three terms of the city court of Montgomery are provided for. One of these terms commences on the first Monday in February. Rule 30 of circuit court practice (Code 1896, p. 1200) merely forbids the extension, by agreement of counsel, of the time for signing the bill of exceptions into a succeeding term of the court, but does not inhibit the extension, by the presiding judge, of the time for signing to the limit of six months. Code 1896, § 620. There is a field of operation for both the rule and the statute cited. Cooley v. U.S. L. Ass'n, 132 Ala. 590, 31 So. 521. The extension in Abercrombie v. Vandiver, 140 Ala. 228, 37 So. 296, was by agreement of counsel. The bill here was signed within the time extended by the presiding judge; and hence became a part of the record for service in respect of a review of the action of the trial court upon the motion for a new trial. Ala. Mid. Ry. v. Brown, 129 Ala. 282, 29 So. 548.

The rulings on the pleadings will be first considered. The judgment, as here important, recites: "This day came the parties by their attorneys, and by leave of the court first had and obtained the plaintiff amends her complaint by interlining count three (3) and by adding thereto counts numbered six (6) and seven (7). And the plaintiff withdraws count four (4) of the complaint, and the defendant's demurrer to the complaint being argued by counsel and understood by the court, it is considered and ordered by the court, and it is the judgment of the court that the said demurrer to the complaint be and the same is hereby overruled." (Italics supplied.) The only demurrers we find in the transcript are thus framed: The caption reads: "Comes the defendant, by attorney, and demurs to the complaint filed in this cause, and separately to each count thereof, and assigns as grounds of demurrer the following: * * *." The several counts, from 1 to 5, inclusive, are separately assailed; the grounds of objection to each count being directed thereagainst immediately after the statement, "To the first count," "To the second count," and so on through the other three. After dealing with the five counts, the demurrer concludes, "To the complaint as a whole and separately to each count thereof," following this with two grounds alleging that the damages claimed are remote and that they are speculative. A separate demurrer, separately filed, to count 7 of the complaint, also appears in the record.

Counsel for appellant take the point, and stress it in brief, that the judgment entry shows a ruling on demurrer to the complaint as a whole. Counsel for appellee controvert this contention, and insist that the recital quoted evinces a ruling overruling, not only that part of the demurrer expressly addressed to the whole complaint, and as well those addressed to each count, including count 5, but also overruling the separate demurrer to count 7. In support of appellee's view we are cited to the case of A. G. S R. R. v. Shahan, 116 Ala. 302, 22 So. 509, from the transcript of which a judgment entry very similar to that with which we are now concerned is copied in brief. There the court took no notice of the question at hand; and, though the conclusion therein reached might have been different, had the point been taken, that decision is not authoritative, for the very reason that no ruling on the present point was made. In short, the question was not considered or decided. It is manifest that the gist of the inquiry involves a construction of the judgment entry, viz.: Was the court's action, to be drawn alone from the judgment entry in the absence of ambiguity therein, upon demurrer to the complaint as a whole or upon demurrer to only parts of the complaint? Appellant can derive nothing in its favor from the caption (of the demurrer) quoted; for the pleading itself expressly addresses...