Green v. Town of Oxford
Decision Date | 24 November 1959 |
Docket Number | 7 Div. 574 |
Citation | 40 Ala.App. 497,115 So.2d 907 |
Court | Alabama Court of Appeals |
Parties | Leslie Hugh GREEN v. TOWN OF OXFORD. |
Edwin W. Harwell, Anniston, for appellant.
Young, Aird & Young, Anniston, for appellee.
This cause originated in the Recorder's Court of the Town of Oxford, where defendant was convicted for the violation of an ordinance of said town. Appeal to the Circuit Court resulted in a jury trial and a judgment of conviction.
The final judgment was rendered on November 12, 1958, at which time notice of appeal to this court was given. Appeal bond was filed and approved on November 14, 1958. Defendant filed motion for new trial on December 1, 1958.
The plaintiff, Town of Oxford, filed motion to strike defendant's motion for a new trial, setting up that the trial court was without jurisdiction to entertain defendant's motion for a new trial after the appeal was taken. Plaintiff's motion was granted and the motion for a new trial was stricken.
The appellant's assignments of error are directed, (1) to the insufficiency of the evidence to make out a prima facie case and to sustain the verdict, because of the absence of evidence that there was an ordinance of the Town of Oxford in force at the time, covering the alleged offense for the violation of which defendant was convicted, and (2) to the action of the court in granting plaintiff's motion to strike defendant's motion for a new trial.
The proceedings in the circuit court were not recorded by a court reporter. A statement in lieu of a transcript of the evidence, as provided by Title 7, Sec. 827(3), Code 1940, is set out in the record. The following appears in said statement:
Our review is limited to those matters upon which action or ruling at nisi prius has been had or invoked. See 7 Ala. Dig., Criminal Law, k1030(1) for numerous cases.
It is clearly shown by the 'statement in lieu of transcript' that failure of proof of the existence and validity of the ordinance was not raised in the trial court except by the motion for a new trial.
In Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633, 638, the court said:
'And after an appeal has been taken, the trial court has no power to entertain a motion for a new trial or rehearing under either the thirty-day statute, Code 1940, Tit. 13, § 119, or the four-month statute, Code 1940, Title 7, § 279, except as it may be affected by the specific grant...
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...of such other grounds probably will not again occur on another trial. The Court of Appeals, in the case of Green v. Town of Oxford, 40 Ala.App. 497, 498, 115 So.2d 907, 908, said as 'Counsel for appellant has filed a motion to strike appellee's brief because it was not filed within the time......