Greek American Produce Co. v. Louisville & N.R. Co.

• Decision Date: 09 May 1911
• Parties: GREEK AMERICAN PRODUCE CO. v. LOUISVILLE & N. R. CO.
• Court: Alabama Court of Appeals

55 So. 455

1 Ala.App. 272

GREEK AMERICAN PRODUCE CO. v. LOUISVILLE & N. R. CO.

Court of Appeals of Alabama

May 9, 1911

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by the Greek American Produce Company against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

James A. Mitchell, S. B. Stern, and R. J McClure, for appellant.

Tillman, Bradley & Morrow, for appellee.

PELHAM J.

The trial in this case was had before the court without a jury. Judgment was rendered for defendant (appellee). No exception was taken by the plaintiff (appellant) to the findings or conclusion of the court, nor to the judgment rendered. The plaintiff made a motion for a new trial and duly excepted to the action of the court in overruling the motion, and assigns the action of the court in refusing to grant the new trial as the single proposition for review.

One of the grounds set out in the motion--i. e., newly discovered evidence--is not insisted upon nor discussed by appellant in his brief, and is waived; and the only other grounds raised by the motion for a new trial go to appellant's contention on the motion, which are insisted upon here, that the court erred in not awarding plaintiff a judgment on the evidence adduced upon the trial, and therefore is in error for overruling plaintiff's motion for a new trial.

A motion for a new trial is not the method to pursue to review rulings of the trial court had during the progress of the trial, not excepted to, where exceptions duly made on the trial are required to secure the benefit of such rulings. Nor can such a motion be used as the instrumentality for review of the trial court's finding upon the evidence, where no exception is reserved to the court's action in making a finding and rendering judgment thereon, when there is another and an exclusive method and authority of law given to review the conclusion and judgment of the trial court.

The sections of the acts regulating the practice and procedure in civil cases relative to appeals and review of the conclusions and judgments of the circuit court of Jefferson county and of the city court of Birmingham (from which this appeal is taken) are the same. Acts 1888-89, pp. 797-800, § 7, and Id. pp. 992-998, § 11. In construing one of these acts, the Supreme Court of Alabama, in the case of Hood v. Pioneer M. & Mfg. Co., 95 Ala. 461, 11 So. 10, has said, speaking through Coleman, J.: "The act to regulate the practice and proceedings in civil cases in the circuit court of Jefferson county, and in the Supreme Court on appeal from judgments rendered in said cases (Acts 1888-89, p. 797 § 7), provides that 'either party may, by bill of exceptions, also present on appeal, for review, the conclusions and judgment of the court upon the evidence,' etc. The record fails to disclose that there was any exception reserved to the conclusion and judgment of the court upon the evidence. Not having reserved an exception to the judgment of the court, this court, by the terms of the statute, is without authority to review the correctness of the conclusion and judgment of the court on appeal." And McClellan, J., in rendering the opinion of ...