City of Birmingham v. Andrews

• Citation: 132 So. 877,222 Ala. 362
• Decision Date: 05 March 1931
• Docket Number: 831.,6 Div. 830
• Parties: CITY OF BIRMINGHAM v. ANDREWS. EX PARTE ANDREWS.
• Court: Supreme Court of Alabama

132 So. 877

222 Ala. 362

CITY OF BIRMINGHAM v. ANDREWS.

EX PARTE ANDREWS.

6 Div. 830, 831.

Supreme Court of Alabama

March 5, 1931

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for personal injuries by Katherine Andrews, a minor, suing by her next friend, M. L. Andrews, against the City of Birmingham. From a judgment and order denying defendant's motion for judgment non obstante veredicto and ordering a new trial, defendant appeals and also applies for mandamus, and plaintiff brings an original petition for mandamus to require the Honorable Roger Snyder, as judge of the Circuit Court of Jefferson County, to vacate the order granting a new trial.

Appeal dismissed, and both petitions for mandamus denied.

Transferred from Court of Appeal.

Horace C. Wilkinson, of Birmingham, for appellant.

Fort Burton & Jones, of Birmingham, for appellee.

FOSTER J.

The circumstances when a judgment non obstante veredicto will be rendered, or when a motion in arrest of judgment or for a repleader will be granted have been referred to in several of our cases, and in numerous decisions of other courts following the common law.

Originally a judgment non obstante veredicto was available to plaintiff only, but by relaxation of this early common-law rule "the generally prevailing rule now is that either plaintiff or defendant may have" such a judgment "in proper cases." 33 Corpus Juris, 1178-1180; Chapman v. Holding, 60 Ala. 522.

An arrest of judgment on motion of defendant operates as a discontinuance and dismissal of defendant, but at common law it was not sufficient to support a writ of error at the instance of plaintiff, unless it was followed by a judgment against plaintiff. 34 Corpus Juris, 44. And at common law a repleader was proper when the plea insufficiently set up a substantial defense, and there was a verdict on it for defendant; then no judgment was rendered for plaintiff non obstante veredicto. But if the plea was in good form, but not of substance, the confession without substantial avoidance justified a judgment for plaintiff non obstante, after verdict for defendant. See note 33 Corpus Juris, 1182.

According to our system of pleading with many courts, and many pleas and on account of a more liberal system generally prevailing with us, the whole subject seems to resolve itself into a right on the part of plaintiff to a judgment non obstante, only when on the whole it clearly appears that the verdict for defendant was upon a special plea of confession and avoidance, and when the avoidance was an immaterial matter. This of course is difficult to find when there are some good special pleas, as well as the one which is immaterial, or when the general issue is pleaded. The court will not consider the evidence and charges to the jury further than to ascertain whether it clearly appears from the entire case that the verdict was surely upon the immaterial plea. Ex parte Pearce, 80 Ala. 195; Chapman v. Holding, 60 Ala. 522; Mudge v. Treat, 57 Ala. 1; Hamner v. Pounds, 57 Ala. 348; Taylor v. Smith, 104 Ala. 537, 16 So. 629; Cent. of Ga. R. Co. v. Gross, 192 Ala. 354, 361, 68 So. 291; Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276; 33 Corpus Juris, 1182 et seq.; 46 Corpus Juris, 65.

And defendant is entitled to an arrest of judgment or one non obstante veredicto only when the verdict for plaintiff was surely upon a count which did not state a substantial cause of action. This is declared by our statute, section 7858, Code. Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46.

We have gone thus into detail to show that a proceeding of the nature we have discussed must be founded upon substantial insufficiency of the pleading, upon which the verdict surely rested, and does not take the place of a motion for a new trial.

A motion for a new trial may be predicated upon the same issues of law as will support the other proceedings, but the latter is bound by the limitations we have indicated. Neither a judgment non obstante veredicto nor an order in arrest of judgment contemplates a new trial. If either may be granted for the refusal of a charge not based upon the materiality and sufficiency of the issue as made in the pleading, rules numbered 34 and 35 of Circuit Court Practice could be effectually nullified, and injustice otherwise be done by having such a judgment rendered without a retrial, and when those rules had not been observed. We cannot sanction the practice of rendering such a judgment except upon the principles so often repeated in our decisions.

We observe that in the case of Helm v. Griffith, 19 Ala. App. 1, 95 So. 548, the Court of Appeals asserted that a defendant was due to have a judgment non obstante veredicto because the evidence showed that he was due the affirmative charge on account of the failure to prove a substantial feature of the complaint, when there was no question as to its sufficiency to state a cause of action. The Alabama case cited in that opinion is not an authority for that view. Some of the other cases do not discuss the question carefully, and some of them refer to their own state practice. Upon a review of that case by this court that feature of the opinion was not treated. This was probably so because it was not in that respect sought by certiorari to be reviewed. Upon the review this court approved the opinion of that court to the effect that there was error in refusing the general charge to defendant. It appears that, after defendant's motion for a judgment non obstante veredicto was overruled, the circuit court rendered judgment for plaintiff, and defendant appealed from that judgment. When the Court of Appeals reversed the case on February 10, 1920, it directed the circuit court to render a judgment non obstante veredicto for defendant. But after the review by this court, which treated the case as though there would be another trial, the Court of Appeals on April 12, 1921, reversed and remanded the case for another trial. This was appropriate on account of the error in refusing the affirmative charge to defendant, but it was done without modifying the opinion in which it was said that defendant was due a judgment non obstante veredicto because of the refusal of the affirmative charge. So that, while it is apparent that the opinion of the Court of Appeals is authority for the contention of the city in this case, its statement on which reliance is here based was not carried into its final judgment, and it is not in accord with the view of such proceeding adopted by this state from the common law.

After the verdict for plaintiff was rendered in this case, and before any entry of judgment, defendant filed a motion in court for "a verdict for defendant non obstante veredicto," for the reason that the court erred in refusing certain written charges at the instance of defendant.

When this motion was finally heard, the court overruled it, but ex mero motu ordered that the verdict be set aside and a new trial granted. De...