King v. Scott, 6 Div. 68

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation217 Ala. 511,116 So. 681
PartiesKING v. SCOTT.
Decision Date29 March 1928
Docket Number6 Div. 68

116 So. 681

217 Ala. 511

KING
v.
SCOTT.

6 Div. 68

Supreme Court of Alabama

March 29, 1928


Rehearing Denied May 17, 1928

Appeal from Circuit Court, Jefferson County, Bessemer Division; J.C.B. Gwin, Judge.

Action for damages for breach of contract by J.J. Scott against Robert King. From a judgment granting plaintiff's motion for a new trial, defendant appeals. Affirmed.

Appeal from ruling on new trial is statutory, and statute relative to motions in writing on appeal is not applicable thereto (Code 1923, §§ 6088, 9459).

Construction given contract by parties will be adopted by courts within rules of construction of contracts and statutes obtaining. [116 So. 682]

Harsh & Harsh, of Birmingham, and Goodwyn & Ross, of Bessemer, for appellant.

Huey & Welch, of Bessemer, for appellee.

THOMAS, J.

The security for costs of the appeal recites that it is taken from the judgment of the court granting the motion for a new trial to plaintiff, and the citation of appeal is to like effect. There is no bill of exceptions to elucidate the issues before the court and the action on the motion in granting a new trial to plaintiff.

The right to appeal from the action of the trial court on the motion for a new trial is of statutory origin (section 6088, Code [Gen.Acts Sept. 22, 1915, p. 722]) and subject to the reasonable limitations and presumptions declared thereof. The apparent conflict with section 9459, Act Sept. 18, 1915, p. 598, of the Code, has been differentiated by this court. Britton v. State, 74 So. 721, 15 Ala.App. 584; Central of Ga. Ry. v. Wilson, 215 Ala. 612, 619, 111 So. 901; Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801; Ex parte Grace, 213 Ala. 550, 105 So. 707; Pacific Fire Ins. Co. v. Burnett, 212 Ala. 287, 102 So. 214; Ex parte Gay, 213 Ala. 5, 104 So. 898; Akin v. Chancy Bros. Hardware & Furn. Co., 207 Ala. 523, 93 So. 408; Stover v. State, 204 Ala. 311, 85 So. 393; Grand Bay Co. v. Simpson, 202 Ala. 606, 81 So. 548. The former statute was the last enunciation of the legislative department on the subject. Powell v. Folmar, 201 Ala. 271, 78 So. 47. The provisions of section 9459 do not apply to motions for new trials. Mitchell v. State, 15 Ala.App. 109, 72 So. 507; Martin v. State, 216 Ala. 160, 113 So. 602; B.R.L. & P. Co. v. Hinton, 146 Ala. 273, 40 So. 988; Lewis v. Martin, 210 Ala. 401, 410, 98 So. 635; Shipp v. Shelton, 193 Ala. 658, 663, 69 So. 102, and authorities; McCarver v. Doe ex dem. Herzberg, 135 Ala. 542, 33 So. 486.

It is further declared by this court that a motion for a new trial, heard and determined on its merits, without objection or insistence that the court was without authority to hear the same because of the failure of the record to show an order of continuance, is a waiver by the party against whom the ruling was made, and cannot be insisted upon for the first time in this court. Hollingsworth v. Miller, 212 Ala. 187, 101 So. 881; Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641. The action of the trial court in granting the motion for a new trial (to which appellant excepted), such complainant--appellant--if he waived, in the lower court the objection now sought to be made, that said court was without jurisdiction to carry the case on submission beyond the thirty-day period within the same term and to grant the same, if well taken, would not prevent the consideration on the merits. He cannot for the first time be heard to complain of the proceedings acquiesced and participated in by him to the time of and when the judgment was rendered against him. Construed against defendant, as the record must be construed, it is apparent that appellant presented and participated in the proceedings and hearings at the time the motion was submitted; and on June 4th, the date the same was heard and granted, the last clause in the order recites his exception. That is to say, in the court, in its logical sequence the question first presented is the jurisdiction of the court to act when it did in the premises. If the minutes of the court show that the court was without jurisdiction when the new trial was granted, was the same waived by the party against whom the new trial was granted? The motion was made on February 25, 1927, presented to the court and passed to March 5th, and on said date it was passed to March 12, 1927, when it was "submitted on citation of authority" [116 So. 683] for decision. This was within the term, and, as for that, within 30 days from judgment. The motion was granted, the verdict of the jury set aside, and a new trial granted on June 4, 1927. The appeal from said ruling on the motion was taken on June 24th. It is then without question that the matter was within the breast of the court from and after March 12th to the date of the decision, and it appears no other order of the court was made than as we have indicated. The motion was regularly passed, in the first instance, to the date of submission.

The burden is upon appellant to show error in the action of the...

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18 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...Code, and that for a new trial and ruling thereon, under section 6088, Code, has been heretofore declared by this court. King v. Scott, 217 Ala. 511, 116 So. 681. The plea in writing and sworn to, when duly filed, became a part of the record proper and will be so reviewed (section 9459, Cod......
  • Hamrick v. Town of Albertville, 8 Div. 404.
    • United States
    • Supreme Court of Alabama
    • April 12, 1934
    ...So. 660; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; King v. Scott, 217 Ala. 511, 116 So. 681; Thomas v. Carter, 218 Ala. 55, 117 So. 634; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Shepherd v. Clements, 22......
  • Richards v. Williams, 6 Div. 846
    • United States
    • Supreme Court of Alabama
    • January 23, 1936
    ...counted from the date of the judgment entered on that motion. Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; King v. Scott, 217 Ala. 511, 116 So. 681; Collins Paving Co. v. Holseapple, 221 Ala. 308, 128 So. 599. (4) The fact that no exception was reserved, or question duly pre......
  • Felder v. State, 3 Div. 701.
    • United States
    • Alabama Court of Appeals
    • June 30, 1931
    ...Allison's Case, 20 Ala. App. 216, 101 So. 626; Id., 211 Ala. 616, 101 So. 629; Green v. State, 21 Ala. 201, 106 So. 683; King v. Scott, 217 Ala. 511, 116 So. 681. The original opinion in this case properly states the law. Application for rehearing overruled. ...
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18 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...Code, and that for a new trial and ruling thereon, under section 6088, Code, has been heretofore declared by this court. King v. Scott, 217 Ala. 511, 116 So. 681. The plea in writing and sworn to, when duly filed, became a part of the record proper and will be so reviewed (section 9459, Cod......
  • Hamrick v. Town of Albertville, 8 Div. 404.
    • United States
    • Supreme Court of Alabama
    • April 12, 1934
    ...So. 660; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; King v. Scott, 217 Ala. 511, 116 So. 681; Thomas v. Carter, 218 Ala. 55, 117 So. 634; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Shepherd v. Clements, 22......
  • Richards v. Williams, 6 Div. 846
    • United States
    • Supreme Court of Alabama
    • January 23, 1936
    ...counted from the date of the judgment entered on that motion. Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; King v. Scott, 217 Ala. 511, 116 So. 681; Collins Paving Co. v. Holseapple, 221 Ala. 308, 128 So. 599. (4) The fact that no exception was reserved, or question duly pre......
  • Felder v. State, 3 Div. 701.
    • United States
    • Alabama Court of Appeals
    • June 30, 1931
    ...Allison's Case, 20 Ala. App. 216, 101 So. 626; Id., 211 Ala. 616, 101 So. 629; Green v. State, 21 Ala. 201, 106 So. 683; King v. Scott, 217 Ala. 511, 116 So. 681. The original opinion in this case properly states the law. Application for rehearing overruled. ...
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