Dees v. Lindsey Mill Co.

• Decision Date: 11 October 1923
• Docket Number: 1 Div. 296.
• Citation: 97 So. 647,210 Ala. 183
• Parties: DEES v. LINDSEY MILL CO.
• Court: Alabama Supreme Court

97 So. 647

210 Ala. 183

DEES v. LINDSEY MILL CO.

1 Div. 296.

Supreme Court of Alabama

October 11, 1923

Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.

Action on account by J. R. Dees against the Lindsey Mill Company. From a judgment for less than claimed, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Hybart & Hare, of Monroeville, for appellant.

Barnett Bugg & Lee and R. L. Jones, all of Monroeville, for appellee.

MILLER J.

J. R Dees sues Lindsey Mill Company for $500 due from it by account. The jury returned a verdict in his favor for $13.48 and from the judgment of the court therefor the plaintiff prosecutes this appeal.

The appellee, the defendant, files motion to dismiss the appeal, because it fails to state from which judgment, the final judgment or the judgment on motion for new trial, the appeal was taken, and because the appeal was not taken within the time and in the manner required by the statute. The plaintiff filed security for appeal in the following form:

"Appeal Bond.

"J. R. Dees v. Lindsey Mill Co.

"Circuit Court, Monroe Co., Ala.

"The undersigned hereby acknowledge themselves security for the costs of appeal to the Alabama Court of Appeals in the above-styled case.

J. R. Dees.

"E. T. Milsap,

"B. H. Stallworth."

It was approved and filed by the clerk of the court on November 4, 1922.

An appeal may be taken "by giving security for the costs of the appeal to be approved by the clerk." Act approved Feb. 15, 1919; Gen. Acts 1919, p. 85; section 2872, Code 1907. This form of appeal, by giving security for cost, was approved by this court in Mayfield v. Court of County Commrs., 148 Ala. 550, 41 So. 932. When a party appeals, and security for costs merely is given, it is only necessary that the principal and sureties acknowledge themselves as security for the cost of the appeal in the particular case. Spencer v. Thompson, 24 Ala. 512; Crump v. Wallace, 27 Ala. 277; Marshall v. Croom, 50 Ala. 479. This the plaintiff and his sureties did in this case. The appeal must be taken within six months from the rendition of the judgment. Section 1, Act, supra (Gen. Acts 1919, p. 85). This judgment was rendered for $13.48 and costs on verdict of the jury by the court on October 6, 1922. The motion for new trial was refused by the court on October 12, 1922, and the appeal was taken by giving security for the costs of the appeal on November 4, 1922. This appeal was taken within the time and in the manner as the statute permits. Gen. Acts 1919, p. 85, § 1.

The appellee insists the appeal should be dismissed, because it does not state from which judgment the appeal was taken. It fails to state whether it was taken from the judgment for $13.48 and costs rendered on October 6, 1922, or the order of the court overruling the motion of plaintiff for new trial made on October 12, 1922, from either of which an appeal lies to this court under appellee's contention. There is only one judgment of the court in the record proper. It is the one rendered October 6, 1922, for $13.48 and costs. The appeal by plaintiff will be referred by this court and must be considered as having been taken from that judgment. Neither the motion for the new trial nor the order of the court appear in the record proper. We find them only in the bill of exceptions. There is no judgment of the court on the motion for a new trial, either in the record proper or in the bill of exceptions. The only reference to it in the transcript is found in the bill of exceptions. The motion for new trial is set out in full in the bill of exceptions, and then appears the following:

"And plaintiff introduced in support of said motion the evidence in the cause as set out in this bill of exceptions, and after considering same the court overruled said motion, and marked same, 'Motion refused October 12, 1922. John D. Leigh, Judge,' to which action of the court the plaintiff then and there duly excepted."

This is not a judgment of the court on the motion for a new trial. Randall v. Worthington, 141 Ala. 497, 37 So. 594. There is no judgment of the court on the motion for new trial which will support an appeal as authorized by statute. Section 2846, Code 1907, as amended Gen. Acts 1915, p. 722. So this appeal must be considered as taken from the only judgment in the case, the one for $13.48 and cost rendered on October 6, 1922, from which an appeal can be prosecuted to the appellate court. Henry v. Couch, 132 Ala. 570, 31 So. 463; Randall v. Worthington, 141 Ala. 497, 37 So. 594. The motion to dismiss the appeal must be denied.

This statement in the bill of exceptions on the motion, "The court overruled said motion and marked same, 'Motion refused October 12, 1922. John D. Leigh, Judge,' to which action of the court the plaintiff then and there duly excepted," is sufficient to present a ruling of the court on the motion and on exception thereto for the consideration of this court on appeal from the judgment in favor of plaintiff and against defendant for $13.48. Wilk v. Key, Simmons & Co., 117 Ala. 285, 23 So. 6; Henry v. Couch, 132 Ala. 570, Cobb v. Malone,

92 Ala. 632, 9 So. 738.

There is only one error assigned; it is the denying and overruling by the court of the motion for new trial made by the plaintiff. This motion assigns three grounds why the new trial should be granted by the court, but only one of them is insisted on and argued by appellant in brief, and is as follows:

"(3) The verdict is contrary to the evidence, in that the evidence shows without conflict that defendant had charged plaintiff with certain items of freight which were in fact paid by plaintiff, and deducted said freight charges from the amount due plaintiff by defendant for hauling logs, which said deductions were erroneous and unauthorized, because said items were not in fact paid by defendant."

This is a suit by plaintiff against defendant for hauling logs. The plaintiff claims and testified that the defendant owed him a balance of $371.71, with interest since last August. The plaintiff testified:

"After giving the defendant credit for every credit it is entitled to receive, it is still due me $371.71 *** The only difference between us are the charges of $16.24 freight paid by me, for which I have the railroad company's receipt, and the difference in scaling the logs. The

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