Choate v. Alabama Great Southern R. Co.

• Decision Date: 02 February 1911
• Citation: 170 Ala. 590,54 So. 507
• Parties: CHOATE v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

54 So. 507

170 Ala. 590

CHOATE v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

February 2, 1911

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by J. C. Choate against the Alabama Great Southern Railroad Company. From an order granting a new trial, plaintiff appeals. Affirmed.

Gaston & Pettus, for appellant.

A. G. &amp E. D. Smith, for appellee.

MAYFIELD J.

The propriety or correctness of a trial court's granting a new trial upon the sole ground that the clerk of the court had lost the charges which were refused to the party moving for the new trial, without the fault or neglect of such party, is presented for decision on this appeal.

Our statutes require trial courts to give or refuse--and so mark and sign--any number of written charges moved for by either party, and provide that such charges then become a part of the record. Those given are taken out by the jury, when they retire for the consideration of the case, while those refused are to be returned by the clerk. Code 1907, § 5364.

It is not necessary for either party to except to the giving of any such charges requested by his adversary, nor to the refusal of those so requested by himself. Appropriate exceptions thereto must be presumed as to both parties. Code 1907, § 3016.

This court, however, has frequently ruled that, in order to review rulings as to such charges, the charges, and the rulings thereon, must appear in the bill of exceptions; that it is not sufficient that they appear in the record proper notwithstanding the statute says that when so given or refused, and indorsed and signed by the trial judge, they become a part of the record. The given charges, however, may be set out in the record proper, and the court will look to them on appeal, to see if any of those refused to a party were duplicates of those given; but not for the purpose of considering whether such charges themselves were properly given, unless they also appear in the bill of exceptions.

The lost charges having become a part of the record, before their loss, they could and should have been substituted. Courts have the inherent power to substitute lost or destroyed records and parts thereof. 13 Ency. Pl. & Pr. pp. 372-375; Adkinson v. Keel, 25 Ala. 551; Pruitt v Pruitt, 43 Ala. 77.

We also have statutes which are declaratory of this common-law power, and which provide the mode and the procedure for such substitutions. Code 1907,§§ 5739-5745.

It is argued by appellee that it was physically impossible to substitute all these charges, and the ruling of the trial court would seem to indicate that the judge had the same opinion. But we are not sufficiently informed as to the facts of the concrete case, to pass upon this question--indeed, we do not deem it necessary, under the view we take of the case.

Substitution being the proper procedure, and the one prescribed by the statute, the attempt should have been made. The plaintiff, who had obtained a judgment in the case, had rights in the premises as well as the defendant, and, so far as the record informs us, he was without fault or neglect as to the loss of the charges; but he could probably have aided the court and the defendant in the substitution. He should at least have been afforded the opportunity of so doing.

This particular ground of the motion for a new trial does not allege that it would be impossible to substitute, and hence that question was not an issue on the hearing; the defendant had no opportunity to show that the charges could be substituted. Moreover, two of the refused charges were each set forth in the motion for a new trial, and each was made a separate ground of the motion for a new trial.

As to what was the substance, effect, or purport of the other charges refused, we are not informed. To have been proper charges, the refusal of which could work a reversal, they must have stated correct propositions of law which were applicable to the issues and evidence, and which had not been given at the request of the defendant.

The affirmative charge had been given for the defendant as to all the counts except count 6. The issues raised as to that count were few and simple, and we can see no occasion or necessity for any great number or complication as to proper charges touching that count. While we of course recognize the fact that the trial court nor the attorneys might not be able to rewrite or reproduce every charge refused to the defendant even in substance, yet the court having given the affirmative charge for defendant as to all the counts except this one, and the pleas to it being few and simple, it does seem to us that all the charges that were material or thought proper to be requested by the defendant could have been substituted--substantially, if not literally. The pleadings in the case were all before the court and counsel; all the evidence was before the court; the issues and facts were all as well known on the hearing of the motion as at the time of the trial; and the law applicable to the case was as...