Florence Cotton & Iron Co. v. Field

• Citation: 104 Ala. 471,16 So. 538
• Court: Supreme Court of Alabama
• Decision Date: 13 November 1894
• Parties: FLORENCE COTTON & IRON CO. v. FIELD.

16 So. 538

104 Ala. 471

FLORENCE COTTON & IRON CO. v. FIELD.

Supreme Court of Alabama

November 13, 1894

Appeal from district court, Lauderdale county; W. P. Chitwood Judge.

Action by James H. Field against the Florence Cotton & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.

In the first count of the complaint, the plaintiff claims $5,000 due under and by virtue of a contract made and entered into between him and the defendant on January 11, 1889, by which the defendant agreed to pay him, as its vice president and general manager, $5,000 a year. The complaint also contained the common counts. The court at the request of the plaintiff gave to the jury the following written charges, and to the giving of each of them the defendant separately excepted: (1) "I charge you, gentlemen of the jury, that it is a general principle that when the evidence leaves a disputed fact in doubt and uncertainty, the issue must be found against the party on whom rests the burthen of proof. Juries should rather weigh the testimony than count the witnesses and should not render decision on a mere preponderance which fails to produce a proper conviction on their minds." (2) "When the onus of proving a fact is on the defendant, if the proof adduced leaves it in a state of doubt or uncertainty, it cannot be considered established. In this case the onus is upon the defendant to establish the release set up, and if the proof which they have adduced of the release leaves it in a state of doubt and uncertainty, the release cannot be considered established." (3) "A mere promise by the plaintiff to release all claim against the defendant for salary is what the law terms 'nudum pactum,' that is a promise without consideration, and is not binding no matter how solemnly made, unless supported by a consideration." (4) "The burthen is on the defendant to establish the defense set up by second and third pleas, and if, after considering all the evidence adduced the jury are not satisfied of its truth, they must find for the plaintiff." (5) "The onus of proving the defense set up is on the defendant, the Florence Cotton &amp Iron Company, and if the proof they adduced leaves it in a state of doubt and uncertainty, the defense cannot be considered established." (9) "A mere offer to release a valid claim is not binding unless accepted, and a valuable consideration paid therefor, and if the jury believe from the evidence that the plaintiff merely offered to release his salary at the conversation alleged to have been held, October 24, 1889, on condition that Messrs. Dornan, Stinson, Woll and Pollock would purchase or sell 3,000 shares of the capital stock of the defendant corporation, and that the said parties did not accept said offer or make it a condition precedent on which they would purchase or sell said stock, they must find for the plaintiff."

R. T. Simpson, Jr., and Roulhac & Nathan, for appellant.

Emmet O'Neal and Tompkins & Troy, for appellee.

HARALSON J.

1. The record shows the judgment in this case was rendered on the 15th of January, 1892, and the appeal was taken on the 12th of April, 1893,-more than 12 months after the date of the rendition of the judgment. On the 23d of January, 1892, the defendant filed a written motion for a new trial in the cause, for the reasons therein stated, which motion, continued from time to time, was not acted on, until 21st April, 1892, when it was overruled, before the adjournment of the term. It is provided by statute for appeals from judgments in cases of this kind, that they "must be taken within one year from the rendition of the judgment or decree." Code, § 3619. Based on this statute, the appellee moves the court to strike out all the assignments of error found in the record in this cause, numbered from 1 to 29, both inclusive, relative to alleged errors committed by the court, on the trial thereof, upon the ground, that the judgment was rendered more than 12 months before the appeal was taken. In response to this motion, the appellant insists, that the motion for a new trial suspended the judgment, and it did not become final, for the purposes of an appeal, until the motion was overruled by the court below.

2. The general rule as stated by the text writers is, that "a pending motion for a new trial, seasonably filed, keeps the cause in the trial court, and, so long as it remains undisposed, of, there can be no final judgment, within the meaning of the statutes regulating appeals." 2 Thomp. Trials, § 2730; Hil. New Trials, 59; 16 Am. & Eng. Enc. Law, 638, § 7. In Walker v. Hale, 16 Ala. 27, it was said, that "a court cannot grant a new trial, after the term is closed, at which the cause was tried, unless a motion during the term be made, and for cause continued until the next term; but if the motion is made, the legal effect of it is to retain the matter for that purpose, under the control of the court. The cause is said to be in fieri, by reason of the motion; and the court may make any order afterwards that may be proper." Pratt v. Keils, 28 Ala. 396. Appeals and writs of error may be prosecuted or sued out, in the federal courts, within two years from the rendition of the judgment or decree (Rev. St. § 1008); and in this state, as we have seen, an appeal must be taken within one year from the rendition of the judgment or decree. The time for prosecuting an appeal in the federal courts, on a ruling of a court on a motion for a new trial in a cause, is not regulated by statute, nor have appeals from such rulings of the courts in this state been made a matter of statutory regulation. The rule as laid down by the supreme court of the United States on the question is, "that if a motion or a petition for a rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then, the judgment or decree does not take final effect for the purposes of the writ of error or appeal." Smelting Co. v. Billings, 150 U.S. 36, 14 S.Ct. 4; Brockett v. Brockett, 2 How. 238, 239; Railroad Co. v. Murphy, 111 U.S. 488, 4 S.Ct. 497; Memphis v. Brown, 94 U.S. 715. In this case, the motion for a new trial was made at the same term at which the judgment was rendered, and within a few days thereafter, was entertained by the court, and, after orders of continuance, was overruled at a subsequent day of the term. The appeal is not from the order overruling the motion for a new trial, but it is from the judgment alone, as is manifested by the security for the costs, the citation, and certificate of appeal. We are constrained to hold, on reason and authority, that for the purposes of the appeal, the judgment did not become final until the 21st day of April, 1892,-the date of the judgment of the court, overruling a motion for a new trial, and that the cause is properly here on appeal. The motion to strike from the record, the assignments of error in the rulings of the court on the trial of the cause is overruled.

3. The plaintiff on his cross-examination, was asked by the defendant, "Did the supervision at Florence require much of your time?" An objection to this question by the plaintiff was sustained. The defendant seeks to justify its asking, on the ground, that the complaint contains a count for work and labor done by plaintiff for defendant, during the year 1889. But, this count was introduced by way of precaution. The count on which...