Denson v. Stanley

Decision Date12 November 1918
Docket Number6 Div. 356
PartiesDENSON v. STANLEY.
CourtAlabama Court of Appeals

On Rehearing, October 21, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by J.J. Stanley against W.A. Denson for money had and received. From a judgment for plaintiff, defendant appeals. Affirmed, in response to opinion of Supreme Court in Ex parte Stanley, 84 So. 773.

Percy Benners & Burr, of Birmingham, for appellee.

SAMFORD J.

The first assignment of error is based upon the action of the court in overruling the demurrer to the third count of the complaint. This count was in statutory form, and the only ground of demurrer interposed was: "The allegations of said count are vague, indefinite, and uncertain." This was a general demurrer, and was properly overruled. Ala. Land Co. v. Slaton, 120 Ala. 259, 24 So. 720.

The second, third, fourth, fifth, and sixth assignments of error are based upon the claim that the defendant's case was seriously prejudiced before the jury by the action of the trial judge and the conduct of plaintiff's counsel, and that the judge refused, upon motion, either to grant the defendant a continuance of the case or to discharge the jury then impaneled and to organize another jury for the trial of the case. All of these questions involve the exercise of a discretion by the trial court.

The proper conduct and disposition of the business of nisi prius courts necessarily involve the exercise of much discretion by the court; the time at which a cause ready for trial should be entered upon depending, as is usually the case, upon considerations of convenience affecting both the public and the rights of litigants, not only of the cause under direct consideration, but the disposition of the entire docket for the whole term at which the particular case is to be tried. These things can hardly be made the subject of unbending rules, so as to give to a party to a cause the absolute right to demand a continuance of his case when that case is ready for trial. Varying circumstances may confront the court calling for the present use of discretion for the enforcement of trials, which is in the power alone of the trial court.

Since the trial court is the only tribunal which can take immediate cognizance of all of the attending circumstances, it is presumed to be the one most capable of determining the proper action to be given. Therefore, as was said in the case of Ex parte Scudder-Gale Grocery Co., 120 Ala. 436, 25 So. 44:

"It is an established rule that, though the abuse or arbitrary and unjust use of discretion may be controlled, yet the discretion of the court to which it properly belongs when reasonably exercised is not to be supplanted by the judgment of another though a superior court." See High on Extr. Rem. pars. 154, 156; Ex parte City of Montgomery, 24 Ala. 98; Ex parte S. & N. Ala. Ry. Co., 44 Ala. 654; Ex parte Shaudies, 66 Ala. 134.

This court has carefully examined the record of the proceedings and is not convinced that the trial court abused its discretion in proceeding with the trial. The orderly and expeditious disposition of the business of the courts requires the setting of cases and the prompt attendance upon the sessions of the court of both litigants and their counsel. The record in this case shows a leniency and tolerance by the court in favor of the defendant far beyond any legal requirements.

The action of the court in overruling the defendant's objection to proceeding with the trial after it had been ascertained, by inquiry, that one of the jurors had during the trial been making some figures as to the amounts testified to by the various witnesses, and the overruling of the motion to continue the cause or to give the defendant another jury, was without error. The record discloses that during the trial, and while the plaintiff was being cross-examined by the defendant, there was a pause, and a suggestion was made that one of the jurors had a piece of paper upon which he had been writing or making some figures. Upon an examination of the juror, it was made to appear that the juror had been taking down the figures testified to by the various witnesses, and, upon being examined by the court, this juror stated that he had not made up his mind on the case, that his mind was perfectly open, and that he had no interest, one way or the other, in either of the parties. It has been held that the jury may take notes of calculations submitted by either plaintiff or defendant, or of what is said or claimed by counsel for either side in argument. The jury cannot be required to do this, but may do so, if it be not attended with delay or undue consumption of time. Indeed, under proper conditions, we think that it might be very desirable for jurors to make notes of testimony, so that they might use it in arriving, not only at a fair verdict, but a correct finding according to mathematical calculations. Lilly, Adm'r, v. Griffin, 71 Ga. 535; Tift v. Towns, Executrix, 63 Ga. 237.

The seventh and eighth assignments of error are based upon the refusal of the court to give at the request of the defendant the affirmative charge, and the contention is made that the evidence showed that Middleton and Reynolds had collected the judgment, the proceeds of which plaintiff was suing for, which judgment was in favor of the plaintiff in a suit that had been determined in the circuit court of Chilton county, and that after deducting a part of the money, which they claimed to be due them as a fee, the remainder of the money was sent to the firm of Denson & Denson, of which firm defendant was a partner. This contention is not tenable. These facts were disputed by the plaintiff, and his evidence tended to establish a contrary contention. According to the plaintiff, the defendant had represented him under contract in the prosecution of a suit against the Louisville & Nashville Railroad, under an agreement whereby the defendant was to receive one-third of the recovery as a fee, and plaintiff was to receive two-thirds. Judgment was obtained by the defendant, the proceeds of this judgment were collected either by the defendant or his associate counsel, acting for the defendant, and the larger part of the proceeds, at least, went into the hands of the defendant. The defendant, contending that his fee was to be fifty per cent., undertook to make settlement with the plaintiff on that basis. If the evidence of plaintiff is to be believed, and the jury evidently thought so, the plaintiff was entitled to recover of the defendant as for money had and received.

The refusal of the charge, as requested in writing by the defendant and made the basis of the ninth assignment of error, was not error on the part of the trial court. This charge was in the following language:

"The court charges the jury that, if they believe from the evidence in this case that the defendant mailed a contract to the plaintiff before the suit was brought against the Louisville & Nashville, stating therein that the defendant was to receive an amount equal to one-half of the recovery and all the damages assessed by the Supreme Court for his services,
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11 cases
  • Knowles v. Blue
    • United States
    • Supreme Court of Alabama
    • 18 Enero 1923
    ...and that the court may exercise a sound discretion as to both parties, dependent on their peculiar or attending circumstances. Denson v. Stanley supra; Ex parte Gro. Co., 120 Ala. 434, 438, 25 So. 44. There was no obvious and palpable abuse of judicial discretion in holding that plaintiff s......
  • Hollins v. State, 55433
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Octubre 1978
    ...the trial court, see Dudley v. State, 263 N.E.2d 161, 164 (Ind.1970); Gann v. State, 330 N.E.2d 88 (Ind.1975).9 In Denson v. Stanley, 17 Ala.App. 198, 84 So. 770 (1919), the court held that the taking of notes by a juror was not objectionable so long as it did not cause delay or undue consu......
  • THOMPSON PROP. v. Birmingham Hide & Tallow
    • United States
    • Supreme Court of Alabama
    • 9 Julio 2004
    ...to the jury room she read aloud from her notes the judge's definition of the degrees of unlawful homicide. "`In Denson v. Stanley, 17 Ala.App. 198, 84 So. 770 [(1918)], the court held that the taking of notes by a juror was not objectionable so long as it did not cause delay or undue consum......
  • Thompson Properties 119 AA 370, Ltd. v. Hide, No. 1021411 (AL 7/9/2004), 1021411.
    • United States
    • Supreme Court of Alabama
    • 9 Julio 2004
    ...to the jury room she read aloud from her notes the judge's definition of the degrees of unlawful homicide. "`In Denson v. Stanley, 17 Ala. App. 198, 84 So. 770 [(1918)], the court held that the taking of notes by a juror was not objectionable so long as it did not cause delay or undue consu......
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