Henry v. Couch
| Decision Date | 13 February 1902 |
| Citation | 132 Ala. 570,31 So. 463 |
| Parties | HENRY v. COUCH ET AL. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.
Action by A. G. Henry, Jr., against M. P. Couch and Thomas Rice. Judgment was rendered in favor of Couch and against Rice. Judgment set aside as to Rice, and new trial granted. Plaintiff appeals. Motion to dismiss appeal denied, and judgment affirmed.
John A Lusk, for appellant.
O. D Street, for appellees.
This was an action in trover, brought by the plaintiff, Henry against M. P. Couch and Thomas Rice. On the trial judgment was rendered in favor of the defendant Couch, and against the defendant Rice. Thereupon the defendant Rice made a motion to set aside the verdict and judgment rendered against him, and to have a new trial. This motion the court granted. The judgment as to Couch was not disturbed. The plaintiff Henry appeals. The certificate of appeal recites that the appeal is taken from "the judgment of the circuit court rendered against the plaintiff," etc. Motion is now made to dismiss the appeal on the ground that there were two judgments, either of which would support an appeal, and it is not shown from which the appeal is taken. The ruling of the court on the motion for a new trial, properly speaking, is not a judgment of the court,--that is, a final judgment that becomes a part of the record,--but a mere ruling on a motion, from which no appeal would lie, but for the statute; and under the statute which authorizes the appeal, and which designates such ruling as a decision on the motion, the ruling cannot be reviewed, except on bill of exceptions. The only judgment rendered against the plaintiff was the one rendered on the trial in favor of the defendant Couch, and it is from this judgment that the appeal must be considered as having been taken. The motion to dismiss must, therefore, be denied.
The order of the court extending the time for the signing of a bill of exceptions in vacation provides only for a bill of exceptions on the motion for a new trial. No allowance is made for a bill of exceptions on the original trial. The bill, having been signed out of term time, cannot be looked to for the purpose of reviewing the court's action on the first trial, as no order was made in term time for such bill. No appeal was taken from the decision of the court on the motion, in setting aside the judgment and granting a new...
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Ewart Lumber Co. v. American Cement Plaster Co.
...of the Code alone from a decision granting or overruling his motion for a new trial. Cobb v. Malone, 92 Ala. 632, 9 So. 738; Henry v. Couch, 132 Ala. 572, 31 So. 463; Ency.Pl. & Pr. p. 955 et seq. When he does the latter, no assignment of error predicated upon the original judgment or on th......
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Shipp v. Shelton
... ... 562, 43 So. 840. The appeal was ... from the decision of the court overruling the motion for a ... new trial. Code 1907, § 2846; Henry v. Couch, 132 ... Ala. 570, 31 So. 463; Cobb v. Malone, 92 Ala. 630, 9 ... On the ... trial the court gave to the jury, at the written ... ...
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Irby v. Kaigler
... ... Supreme Court in Chambers v. Morris, 144 Ala. 626, ... 39 So. 375, Randall v. Worthington, 141 Ala. 497, 37 ... So. 594, and Henry v. Couch et al., 132 Ala. 570, 31 ... So. 463. But the later cases of the Supreme Court cited above ... hold contra, and require the record proper ... ...
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Dees v. Lindsey Mill Co.
... ... October 6, 1922, from which an appeal can be prosecuted to ... the appellate court. Henry v. Couch, 132 Ala. 570, ... 31 So. 463; Randall v. Worthington, 141 Ala. 497, 37 ... So. 594. The motion to dismiss the appeal must be denied ... ...