Central of Georgia Ry. Co. v. Goodwater Mfg. Co.

• Decision Date: 30 June 1915
• Docket Number: 159
• Citation: 69 So. 343,14 Ala.App. 258
• Parties: CENTRAL OF GEORGIA RY. CO. v. GOODWATER MFG. CO.
• Court: Alabama Court of Appeals

69 So. 343

14 Ala.App. 258

CENTRAL OF GEORGIA RY. CO. v. GOODWATER MFG. CO.

No. 159

Court of Appeals of Alabama

June 30, 1915

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by the Goodwater Manufacturing Company against the Central of Georgia Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

Geo. A. Sorrell, of Alexander City, and Barnes & Brewer, of Opelika, for appellant.

John A Darden, of Goodwater, for appellee.

PELHAM P.J.

The appellee makes a motion in this case to dismiss the appeal on the ground that it was not taken within the time prescribed by law. The contention of the appellee is that under section 4145 of the Code the appeal should have been taken within 30 days from the rendition of the judgment or order. This section of the Code (4145) does not refer to the ordinary motion for a new trial, as in the present case, but to motions which may be made for setting aside judgments for irregularities, imperfections, etc. Woodward Iron Co. v Brown, 167 Ala. 316, 52 So. 829. This appeal is governed by the statute in regard to appeals from decisions on motions for new trials (Code, § 2846), and the statute providing for the limitation of appeals (Code, § 2868), as amended by the act passed at the special session of 1909 (Acts 1909, p. 165). The motion to dismiss the appeal is overruled.

The appellee, as the plaintiff in the court below, brought suit against the defendant as a common carrier for failure to deliver a car load of coal within a reasonable time. The case was tried on the defendant's plea of the general issue, and resulted in a verdict for the plaintiff (appellee). The appellant made a motion for a new trial, and appeals from the order of the court denying the motion, and assigns that ruling of the court as error.

It is averred in the complaint that the car load of coal was delivered to the defendant carrier at Birmingham; Ala., on or about the 5th day of February, 1913, and that it failed to deliver the same to the plaintiff at Goodwater, Ala., within a reasonable time; that the said car was not delivered until on or about February 28, 1915. It was shown by the evidence that 2 or 3 days was a reasonable time for a car load of coal to come from Birmingham to Goodwater on defendant's line of railroad, and that sometimes the car would come through in the next day after delivery to the carrier at Birmingham. We cannot agree with the contention of the appellant that there was no evidence from which the jury could find that there had been a delivery of the car to the defendant carrier at Birmingham by its connecting carrier and a consequent delay in delivery by the latter carrier. The evidence set out in the bill of exceptions contains a letter from an official of the defendant carrier written at Birmingham on February 17, 1913 shown to have been introduced in evidence on the trial without objection, showing that the defendant carrier then had the car "on hand" and was promising to move it out of Birmingham that day; and the evidence without conflict shows, further, that the car did not arrive at Goodwater until the night of February 27, 1913, and was not attempted to be delivered until the next day; an unreasonable time under the undisputed evidence having elapsed from the time it received the car as a...