Cobb v. Malone

CourtSupreme Court of Alabama
Writing for the CourtCLOPTON, J.
Citation9 So. 738,92 Ala. 630
Decision Date25 June 1891
PartiesCOBB v. MALONE ET AL.

9 So. 738

92 Ala. 630

COBB
v.
MALONE ET AL.

Supreme Court of Alabama

June 25, 1891


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.

CLOPTON, J.

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 [9 So. 739] 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...

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807 practice notes
  • Commonwealth Life Ins. Co. v. Harmon, 6 Div. 528.
    • United States
    • Alabama Supreme Court
    • March 22, 1934
    ...it was contrary to the great weight of the evidence as to induce the conclusion that it was wrong and unjust. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; Sovereign Camp, W. O. W. v. Gunn, 224 Ala. 444, 140 So. 410. The rule of granting such motion is stated in Hopkins v. Harrison, as ......
  • Clark v. Container Corp. of America, Inc.
    • United States
    • Supreme Court of Alabama
    • September 27, 1991
    ...verdict." We did this because we felt that this judicially adopted standard, which sprung from dicta in an 1891 case (Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891)), was not consistent with the constitutional right to trial by jury, which in 1986 encompassed not only § 11, but also, insofar......
  • Birmingham Southern R. Co. v. Harrison, 6 Div. 767
    • United States
    • Supreme Court of Alabama
    • 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, 175 Ala. 60, 56 So. 574), or that......
  • Illinois Cent. R. Co. v. Johnston, 6 Div. 775.
    • United States
    • Alabama Supreme Court
    • June 30, 1920
    ...before cited. Taking due account of this duty to report, this court's opinion is that, under the familiar rule of Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, the trial court erred in overruling the motion for new trial because the overwhelming weight of the evidence, after "allowing all re......
  • Request a trial to view additional results
807 cases
  • Commonwealth Life Ins. Co. v. Harmon, 6 Div. 528.
    • United States
    • Alabama Supreme Court
    • March 22, 1934
    ...it was contrary to the great weight of the evidence as to induce the conclusion that it was wrong and unjust. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; Sovereign Camp, W. O. W. v. Gunn, 224 Ala. 444, 140 So. 410. The rule of granting such motion is stated in Hopkins v. Harrison, as ......
  • Clark v. Container Corp. of America, Inc.
    • United States
    • Supreme Court of Alabama
    • September 27, 1991
    ...verdict." We did this because we felt that this judicially adopted standard, which sprung from dicta in an 1891 case (Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891)), was not consistent with the constitutional right to trial by jury, which in 1986 encompassed not only § 11, but also, insofar......
  • Birmingham Southern R. Co. v. Harrison, 6 Div. 767
    • United States
    • Supreme Court of Alabama
    • 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, 175 Ala. 60, 56 So. 574), or that......
  • Illinois Cent. R. Co. v. Johnston, 6 Div. 775.
    • United States
    • Alabama Supreme Court
    • June 30, 1920
    ...before cited. Taking due account of this duty to report, this court's opinion is that, under the familiar rule of Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, the trial court erred in overruling the motion for new trial because the overwhelming weight of the evidence, after "allowing all re......
  • Request a trial to view additional results

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