Choate v. Alabama Great Southern R. Co.

CourtSupreme Court of Alabama
Writing for the CourtMAYFIELD, J.
Citation170 Ala. 590,54 So. 507
PartiesCHOATE v. ALABAMA GREAT SOUTHERN R. CO.
Decision Date02 February 1911

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. & E. D. Smith, for appellee. [54 So. 508]

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...

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27 practice notes
  • Denson v. Alabama Fuel & Iron Co., 7 Div. 735
    • United States
    • Supreme Court of Alabama
    • December 21, 1916
    ...entitled to the affirmative charge because of plaintiff's failure to prove a material averment of his complaint. Choate v. A.G.S.R.R. Co., 170 Ala. 590, 54 So. 507; Christian v. Denmark, 156 Ala. 390, 47 So. 82; Appling v. Stovall, 123 Ala. 398, 26 So. 212. In each count there is the averme......
  • Davis v. State
    • United States
    • Alabama Court of Appeals
    • June 27, 1913
    ...if the propositions of law asserted in the refused charges are not also covered in the given ones. Choate v. A.G.S.R.R. Co., 170 Ala. 593, 54 So. 507. We have deemed it necessary to discuss, and have discussed, only those points which were insisted upon by defendants' counsel. We do not fin......
  • Louisville & N. R. Co. v. Scott, 5 Div. 140
    • United States
    • Supreme Court of Alabama
    • October 10, 1935
    ...v. Cent. of Ga. Rwy. Co., 221 Ala. 358, 128 So. 789; Mills Lumber Co. v. Hull, 222 Ala. 229, 131 So. 902; Choate v. Ala. Gr. So. R.R. Co., 170 Ala. 590, 54 So. 507. Counsel for appellee now urge that there is a limitation upon the general rule cited by us, and that upon its consideration th......
  • Louisville & N.R. Co. v. Holland
    • United States
    • Supreme Court of Alabama
    • May 11, 1911
    ...D of the complaint should have been given," and closed with the citation, in support of the statement, of Choate v. A. G. S. R. R. Co., 54 So. 507-509. A copy thereof was served upon counsel for appellee, according to the certificate, on April 5, 1911. The opinion was delivered on May 11, 1......
  • Request a trial to view additional results
27 cases
  • Denson v. Alabama Fuel & Iron Co., 7 Div. 735
    • United States
    • Supreme Court of Alabama
    • December 21, 1916
    ...entitled to the affirmative charge because of plaintiff's failure to prove a material averment of his complaint. Choate v. A.G.S.R.R. Co., 170 Ala. 590, 54 So. 507; Christian v. Denmark, 156 Ala. 390, 47 So. 82; Appling v. Stovall, 123 Ala. 398, 26 So. 212. In each count there is the averme......
  • Davis v. State
    • United States
    • Alabama Court of Appeals
    • June 27, 1913
    ...if the propositions of law asserted in the refused charges are not also covered in the given ones. Choate v. A.G.S.R.R. Co., 170 Ala. 593, 54 So. 507. We have deemed it necessary to discuss, and have discussed, only those points which were insisted upon by defendants' counsel. We do not fin......
  • Louisville & N. R. Co. v. Scott, 5 Div. 140
    • United States
    • Supreme Court of Alabama
    • October 10, 1935
    ...v. Cent. of Ga. Rwy. Co., 221 Ala. 358, 128 So. 789; Mills Lumber Co. v. Hull, 222 Ala. 229, 131 So. 902; Choate v. Ala. Gr. So. R.R. Co., 170 Ala. 590, 54 So. 507. Counsel for appellee now urge that there is a limitation upon the general rule cited by us, and that upon its consideration th......
  • Louisville & N.R. Co. v. Holland
    • United States
    • Supreme Court of Alabama
    • May 11, 1911
    ...of the complaint should have been given," and closed with the citation, in support of the statement, of Choate v. A. G. S. R. R. Co., 54 So. 507-509. A copy thereof was served upon counsel for appellee, according to the certificate, on April 5, 1911. The opinion was delivered on May 11......
  • Request a trial to view additional results

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