Ex parte Stanley

• Decision Date: 15 May 1919
• Docket Number: 6 Div. 876
• Citation: 203 Ala. 408,84 So. 773
• Parties: Ex parte STANLEY.
• Court: Alabama Supreme Court

84 So. 773

203 Ala. 408

Ex parte STANLEY.

6 Div. 876

Supreme Court of Alabama

May 15, 1919

Rehearing Denied June 30, 1919

Certiorari to Court of Appeals.

Petition of J.J. Stanley for writ of certiorari to the Court of Appeals to review and revise the judgment in said court reversing and remanding the case of W.A. Denson v. J.J Stanley, 84 So. 770. Writ granted.

Percy Benners & Burr, of Birmingham, for appellant.

W.A Denson, of Birmingham, for appellee.

MAYFIELD J.

The Court of Appeals (Denson v. Stanley, 84 So. 770) reversed the judgment of the trial court for refusing to grant a new trial to defendant, on the sole ground that certain papers were lost from the court files after verdict and judgment, without fault on the part of the defendant. This was the exact question presented to this court for decision in the case of Choate v. A.G.S.R.R. Co., 170 Ala. 590, 54 So. 507. The first paragraph of the opinion states the case presented as follows:

"The propriety or correctness of a trial court's granting a new trial upon the sole ground that the clerk of the court had lost the charges which were refused to the party moving for the new trial, without the fault or neglect of such party, is presented for decision on this appeal."

That case was a stronger one for the defendant on appeal there than the case now under consideration. In that case the trial court granted the new trial. Whatever discretion the trial court had, and whatever advantages it had as to having seen and heard the witnesses testify on the main trial, and on the motion for a new trial, was in defendant's favor; here, those elements are against him. Notwithstanding this, we hold that it was error to grant a new trial on that ground.

The Court of Appeals attempts to distinguish that case from this on the sole ground that it was not alleged in the motion there, as it is here, that it was impossible to substitute the lost charges. It is true there is a statement in the opinion to this effect, which is quoted in the opinion of the Court of Appeals. That statement, however, was not the sole reason for the decision; it was only contained arguendo, as one reason to show error. It was not decided in that case that the ruling would have been different, had the petition contained such allegation. The record in that case showed that the trial was had on the theory that it was impossible to substitute the lost charges. In that case it was said in the opinion, among other things:

"It is argued by appellee that it was physically impossible to substitute all these charges, and the ruling of the trial court would seem to indicate that the judge had the same opinion. But we are not sufficiently informed as to the facts of the concrete case to pass upon this question--indeed, we do not deem it necessary, under the view we take of the case. Substitution being the proper procedure, and the one prescribed by the statute, the attempt should have been made. The plaintiff, who had obtained a judgment in the case, had rights in the premises, as well as the defendant, and, so far as the record informs us, he was without fault or neglect as to the loss of the charges; but he could probably have aided the court and the defendant in the substitution. He should at least have been afforded the opportunity of so doing. *** It was the duty of the defendant and of the trial court to make the attempt to substitute, instead of presuming that it could not be done, and granting a new trial on account of the loss of the charges--thus denying the plaintiff his right to have a substitution."

If the judge who tried the cause, sitting as a fair arbiter in the premises, with all the facts before him, decided that it was not his duty to grant a new trial, an appellate court would be slow to hold that he erred in so doing. This conclusion is fully justified by previous decisions of this court. Brock v. R.R. Co., 65 Ala. 79; Broda v. Greenwald, 66 Ala. 538; McLeod v. Mfg. Co., 108 Ala. 81, 19 So. 326; W.U.T. Co. v. Chamblee, 122 Ala. 428, 25 So. 232, 82 Am.St.Rep. 89.

The mere loss of charges or other papers which are not shown affirmatively to have...