Farmers' Bank of Luverne v. Gibson
| Decision Date | 20 April 1926 |
| Docket Number | 4 Div. 184 |
| Citation | 108 So. 628,21 Ala.App. 389 |
| Parties | FARMERS' BANK OF LUVERNE v. GIBSON. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 18, 1926
Appeal from Circuit Court, Crenshaw County; A.E. Gamble, Judge.
Action in detinue by the Farmers' Bank of Luverne against R.L Gibson. From a judgment for defendant, plaintiff appeals, and defendant moves to strike the bill of exceptions. Motion overruled, and judgment affirmed.
On cross-examination by plaintiff of defendant's witness Styron, this question, defendant's objection to which was sustained, was propounded to the witness: "What did he (defendant) give you to come up here and swear in this case?"
W.H. Stoddard, of Luverne, for appellant.
Frank B. Bricken, of Luverne, for appellee.
This was a suit in detinue by appellant (plaintiff in the court below) against appellee (defendant) for the recovery of certain items of personal property. From a Judgment in favor of the appellee for the costs, this appeal is prosecuted.
The case was tried and judgment entered on March 4, 1925. Thereafter plaintiff filed its motion for a new trial, which was indorsed "3/16/25 continued, Gamble, Judge." On June 8, 1925, according to the recitals in the bill of exceptions, the motion was called, and both plaintiff and defendant offered testimony on the hearing; no objection to the said hearing being interposed by defendant. While the order of continuance of said motion was irregular, abortive and imperfect, yet the action of the appellee in failing to object to the hearing on June 8th, and in taking part in same cured this defect.
The bill of exceptions is indorsed: --and shows to have been signed and approved by the trial judge as a correct bill of exceptions on September 12, 1925.
Appellee moves to strike the bill of exceptions on the ground that the judgment overruling the motion for a new trial is shown only by the bill of exceptions, and cannot be considered as the judgment from which the appeal is prosecuted, and that the bill of exceptions shows not to have been presented in accordance with law within 90 days from the date of the only Judgment shown by the record proper.
The said motion must be and is overruled. The judgment overruling the motion for a new trial is required to be incorporated in the bill of exceptions in order to be reviewable on appeal. Code 1923, § 6088. Birmingham Water Works Co., v. Justice, 204 Ala. 547, 86 So. 389. This being so, it is not requisite for it to appear at any other place. By express provision of Code 1923, § 6088:
"The decision of the court (on the motion for a new trial) shall be included in the bill of exceptions which shall be a part of the record in the cause."
The bill of exceptions, being presented and signed within the required time as regards the judgment on appellan...
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