Central of Georgia Ry. Co. v. Ashley

Decision Date29 April 1909
PartiesCENTRAL OF GEORGIA RY. CO. v. ASHLEY.
CourtAlabama Supreme Court

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

Action by Aileen Ashley, by her next friend, against the Central of Georgia Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

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

Hill Hill & Whiting, for appellee.

DOWDELL C.J.

The judgment shows that the complaint was amended, and that the demurrer to the complaint as amended was overruled. This is the only ruling on demurrer shown by the record. It does not appear what the demurrer was to the complaint after amendment. When demurrers are filed to pleadings, and before action on the demurrers the pleadings are subsequently amended, in order to have the benefit of the demurrers, the same should be reinterposed to the pleadings as amended. The record not showing what the demurrer was to the amended complaint, we cannot review the action of the court in overruling the same. For aught that we can tell the demurrer was general.

What purports to be a bill of exceptions in the transcript was not signed within 30 days after the trial of the cause, nor within a time fixed by any valid order of extension, as required by the practice act for the city court of Montgomery. Acts 1900-01, p. 830, § 10. The motion to strike the bill must therefore prevail. Arnett v. Western Railway of Alabama (Ala.) 39 So. 775; Western Railway of Alabama v. Russell, 144 Ala. 142, 39 So. 311.

While the bill of exceptions may not, for the reasons above stated be looked to and considered in respect to rulings of the court on questions arising on the main trial, still it may be considered in reference to the action of the trial court in overruling the motion for a new trial, since the bill was signed within a time fixed by a valid order of the presiding judge, made within 30 days of the ruling on said motion as authorized by the practice act above cited.

The refusal of the court to give certain written charges requested by the defendant is, among other things, made ground of motion for a new trial. The writer is of the opinion that this is a matter which should be presented for review on appeal, by a legal bill of exceptions taken on the main trial, and not on a motion for a new trial. I say this because to permit such a practice enables a party to evade the requirements of the statute as to the manner and time of taking bills of exceptions on the trial of causes. Indeed, it operates, in my opinion, to emasculate the statute as to the time of signing bills of exceptions reserved on the trial. Unless an exception is legally reserved to the giving or the refusal of a charge, the ruling of the court cannot be subsequently made a ground of motion for a new trial, to the end of reviewing the court's action on appeal. Stewart v. Guy, 138 Ala. 176, 34 So. 1007; McLendon v. Bush, 127 Ala. 470, 29 So. 56; ...

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