Dillard v. Savage

• Decision Date: 14 June 1893
• Citation: 98 Ala. 598,13 So. 514
• Parties: DILLARD ET AL. v. SAVAGE.
• Court: Alabama Supreme Court

13 So. 514

98 Ala. 598

DILLARD ET AL. v. SAVAGE.

Supreme Court of Alabama

June 14, 1893

Appeal from circuit court, Mobile county; W. E. Clarke, Judge.

Ejectment by Maria L. Savage against C. E. Dillard and others. From an order granting a new trial after verdict for defendants, they appeal. Affirmed.

Gregory L. & H. T. Smith, for appellants.

T. A Hamilton, for appellee.

STONE C.J.

The present case is one in which a new trial was granted. By rules of practice adopted and prevailing in the circuit court of Mobile county, Mondays are set apart as motion days; and when the motion is for a new trial, "at least one entire day's notice shall be given to the opposite party, or his attorney." The motion was set for Monday, June 6, 1892 and the notice of the motion was served on counsel on Saturday, June 4th. The motion was heard and granted on Monday, defendants' counsel not appearing. It is claimed that, as the intervening day was Sunday,-dies non juridicus,-there was a failure to give the one entire day's notice, and that the order granting a new trial must be set aside for that reason. Robertson v State, 43 Ala. 325. The only exception reserved to the action of the court was in the following language: "On Monday, June 13, 1892, said attorneys appeared in open court, and excepted to the action of the court in granting said motion, and in setting aside said verdict." The only error assigned is that "the court erred in the order and judgment of June 6, 1892, by setting aside the verdict of the jury in said cause, and by granting to the plaintiff a new trial of said cause."

Exceptions to avail in this court, must be specific; must so specify the point of objection as to direct attention to the error complained of. 3 Brick. Dig. p. 80, § 33 et seq. But this principle must not be extended too far. If the exception presents the point of objection so as to be readily understood, this is enough. We are simply following an established rule, not declaring a new one. We think the exception reserved in this case, and the error assigned, only question the propriety of the order granting the new trial, and do not raise the inquiry of the time when it was heard, or the sufficiency of the notice. The presiding judge heard the testimony of the witnesses, observing their manner, and had better opportunities for pronouncing on its weight and convincing power than we can have. He was possibly dissatisfied with...