Cobb v. Malone

Decision Date25 June 1891
Citation9 So. 738,92 Ala. 630
CourtAlabama Supreme Court

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge.

Action by A. A. Cobb against Malone and Collins to recover for conversion of a bale of cotton. Judgment for defendants. Plaintiff appeals. Affirmed.

Milligan & Milligan, for appellant.


The act of February 16, 1891, "to allow appeals to the supreme court from decisions of the city and circuit courts in this state, granting, or refusing to grant, motions for new trials," was intended to abrogate the rule, which has prevailed from the organization of the court, that the granting or refusal of a new trial is not revisable, and could not be assigned for error, and to lay the foundation for a review of the facts by appeal from the order on the motion for a new trial. The present appeal is taken directly from the decision of the court refusing to grant a new trial. The reasons stated in the motion are: "(1) That the verdict of the jury was contrary to the evidence and the law of the case; (2) said verdict was contrary to the charge of the court." As the statute introduces a new practice in this state, and as this is the first appeal under it which has come before us, the occasion is opportune to consider its general effect and operation, and to lay down some general rule for the government of the court, though in so doing we may go beyond the necessities of this case. To a better understanding of its provisions, we quote the statute in full: "Whenever a motion for a new trial shall be granted or refused, by any of the circuit of city courts of this state, in any civil case at law, either party may except to the decision of the court, and may reduce to writing the reasons offered for said new trial, together with the substance of the evidence in the case, and also the decision of the court on said motion; and it shall be the duty of the judge before whom said motion is made to allow and sign the same; and such bill of exceptions shall be a part of the record in the cause, and it may embrace the judgment and motion or other matters of record and it shall be lawful for the appellant, in such cause, to assign for error that the judge in the court below improperly granted, or refused to grant, a new trial therein; and the supreme court shall have power to grant new trials, or to correct any errors of the circuit or city court in granting or refusing the same." Acts 1890-91, p. 779. The enactment itself does not provide, in express terms, for appeals in such cases, but such is the clear implication. Where the motion for a new trial is granted, the judgment is set aside, and the appeal can only be taken from the decision on the motion; but, when refused, the appeal may be taken from the order on the motion, thereby bringing for revision only those matters on which a motion for a new trial is usually, and may be properly, based; or the appeal may be taken from the final judgment, and, on incorporating in the bill of exceptions the motion, the reasons therefor, and the decision thereon, the appellant may assign for error the refusal to grant the same, in addition to such assignments of error as were allowed under the former practice. Under the statute, the reasons offered for a new trial may be stated in the motion itself. When the ground of the motion is the insufficiency of the evidence to support the verdict, or that it is contrary to the evidence, the substance of which is reduced to writing, a general assignment is sufficient. But when the reason is that the verdict is contrary to the law or that errors of law occurred during the trial, a general assignment will be disregarded. The respects in which the verdict is contrary to law, or the errors of law complained of, should be specified, so as to direct the court's attention to the alleged erroneous rulings. 2 Thomp. Trials, §§ 2754, 2755. No charge of the court being shown and no question of law presented by the record in the present case, consideration will be necessarily confined to the ground that the verdict is contrary to the evidence; and what we shall hereafter say must be understood as applicable when this is the ground of the motion for a new trial.

The power to set aside verdicts has been generally regarded in this country as inherent in courts organized upon the principles of common law, though in some states it is regulated by statute; enumerating the grounds upon which a motion for a new trial may be made. The power is essential to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard to the testimony, or of bias or prejudice, on the part of juries, which sometimes occur. But, in exercising the power, the court should be careful not to infringe the right of trial by jury, and should bear in mind that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts. Being selected for their impartiality and qualifications to judge facts, and unanimity of opinion and conclusion being required, their verdicts are presumed to be...

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  • International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O. v. Russell, 8 Div. 751
    • United States
    • Alabama Supreme Court
    • March 22, 1956
    ...verdict for plaintiff. Under these circumstances, we will not overrule the trial court's ruling on the motion for new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Smith v. Smith, 254 Ala. 404, 48 So.2d 546; Bell v. Nichols, 245 Ala. 274, 16 So.2d A directed verdict for the defendants can ......
  • Nashville, C. & St. L. Ry. v. Crosby
    • United States
    • Alabama Supreme Court
    • October 14, 1915
    ...are matters for the consideration of the jury, in determining the weight which should be accorded to oral testimony. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Southern Ry. v. Morgan, 178 Ala. 590, 59 So. Sherrer v. Enterprise Banking Co., 160 Ala. 329, 49 So. 779; Montgomery Traction Co. v. K......
  • Birmingham Southern R. Co. v. Harrison
    • United States
    • Alabama Supreme Court
    • January 16, 1919
    ... ... verdict is so excessive as to indicate passion, prejudice, ... [82 So. 544] ... partiality, or corruption on the part of the jury ( Cobb ... v. Malone, 92 Ala. 630, 9 So. 738; N., C. & St. L ... Ry. v. Crosby, 194 Ala. 338, 347-352, 70 So. 7; ... Cent. of Ga. Ry. Co. v. White, ... ...
  • Addington v. State
    • United States
    • Alabama Court of Appeals
    • September 7, 1916
    ...approved September 22, 1915, amended section 2846 of the Code is made applicable to criminal appeals. Acts 1915, p. 722. In Cobb v. Malone, 92 Ala. 630, 9 So. 738, where rule was first announced in this state in civil cases, it was said: "The decision of the trial court, refusing to grant a......
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1 books & journal articles
  • Procedure trumps justice: judicial inactivism in Alabama and its unjust result.
    • United States
    • Jones Law Review Vol. 13 No. 2, March 2009
    • March 22, 2009
    ...37 So. 393 (Ala. 1904). (50) ALA. CODE [section] 12-22-10 (1975); see also Emerson v. Alabama, 4 So. 2d 186 (Ala. 1941); Cobb v. Malone, 9 So. 738 (Ala. (51) ALA. R. CRIM. P. 32; see also Dowdell, 854 So. 2d at 1199. (52) ALA. R. CRIM. P. 32.1 (a)-(e). (53) ALA. R. CRIM. P. 32.1 (e). (54) I......

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