Gay v. Stewart
Decision Date | 22 February 1940 |
Docket Number | 7 Div. 558. |
Citation | 239 Ala. 428,195 So. 285 |
Parties | GAY v. STEWART. |
Court | Alabama Supreme Court |
Rehearing Denied March 21, 1940.
Further Rehearing Denied April 11, 1940.
Appeal from Circuit Court, Clay County; Arthur Glover, Judge.
Action by E. P. Gay against J. W. Stewart, wherein defendant filed a motion to dismiss the suit for failure of plaintiff, a nonresident, to give security for costs. From a judgment granting the motion, plaintiff appeals.
Affirmed.
Hugh A Locke, of Birmingham, for appellant.
Gibson & Gibson, of Birmingham, A. L. Crumpton, C. W. McKay, and Hardegree & Dempsey, of Ashland, and Paul O. Luck, of Columbiana, for appellee.
The submission was on motion to dismiss the suit for failure of plaintiff, as a nonresident, to give security for costs. Code of 1923, § 7252; Ex parte State ex rel. Altman, 237 Ala. 642 188 So. 685.
The bill of exceptions affirmatively shows that it does not contain all the evidence. The conclusions of fact of the trial court cannot be reviewed. Taylor v. Hoffman, 231 Ala. 39, 163 So. 339; Patton v. Endowment Dept., etc., 232 Ala. 236, 167 So. 323; City of Roanoke v. Johnson, 229 Ala. 496, 158 So. 182; Hamrick v. Town of Albertville, 228 Ala. 666, 155 So. 87; Wood v. Wood, 119 Ala. 183, 24 So. 841. Such is the condition of this bill of exceptions.
The action of the trial court is affirmed.
Affirmed.
On Rehearing.
The motion to dismiss the appeal in the case was not a part of the record proper. It required a consideration of the evidence which, on the trial, was extended at great length. This could only be shown by a bill of exceptions.
In Dorrough v. Mackenson, 231 Ala. 431, 165 So. 575, 577, this court said:
The motion to dismiss the suit on plaintiff becoming a nonresident after the suit was brought and for the lack of security for costs was unintelligible to the trial court and to this court without the evidence directed to that issue. We have indicated that the same was required to be presented by a bill of exceptions. When the plaintiff became a nonresident after the suit was brought, were the circumstances such as that the court should have given other time than that consumed in the trial for filing and approval of the security for costs?
The case of Universal Motor Lines v. Walker, 237 Ala. 413, 187 So. 495, 496, is not an apt authority. In that case there was no necessity for a recourse to the evidence taken on the trial, since the record showed all the facts. Therein it was declared:
It will be observed that the terms of the two statutes (Section 7249 and 7252, Code) are different. The former requires of a nonresident that the suit be dismissed on motion if security for costs be not given, "when the suit is commenced, or within such time thereafter as the court may direct." The latter statute is to the effect that if such security for costs be not given within thirty days after motion, due notice to plaintiff, his agent, etc., "the suit must be dismissed." Under the latter statute, the fact of nonresidency vel non was better known to the plaintiff than to anyone else. He had the thirty days' notice required and given by the defendant under the statute within which to be ready for compliance, if the court so determined.
In Ex parte White,...
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Childs v. Julian, 8 Div. 9.
... ... is incomplete by the omission of material exhibits before the ... trial court, there is nothing for review that is materially ... affected by the omitted exhibits or maps. American Life ... Ins. Co. v. Carlton, Ala.Sup., 198 So. 1; Gay v ... Stewart, 239 Ala. 428, 195 So. 285; Taylor v ... Hoffman, 231 Ala. 39, 163 So. 339. However, the ... "Childs' Map" was before the trial court and is ... exhibited to this court. We observe from the description in ... the pleading and mortgage to the land bank that a proper ... description can be ... ...
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Delbridge v. State, 4 Div. 238.
...evidence was needed. Dorrough v. Mackensen, 231 Ala. 431, 165 So. 575; Harris v. Barber, 237 Ala. 138(7), 186 So. 160; Gay v. Stewart, 239 Ala. 428, 195 So. 285. It with that construction outstanding that the Code Committee added to section 9459, supra, motions for a new trial, in bringing ......
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Gay v. Wynn, 7 Div. 594.
...The judgment of the circuit court in this cause is affirmed on authority of the decision this day rendered in the case of Gay v. Stewart, Ala.Sup., 195 So. 285. ANDERSON, C.J., and THOMAS and BROWN, JJ., concur. ...
- Owens v. State, 4 Div. 129.