Liverpool & London & Globe Ins. Co. v. Lowe

• Decision Date: 08 June 1922
• Docket Number: 7 Div. 263.
• Citation: 208 Ala. 12,93 So. 765
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO. v. LOWE ET AL.
• Court: Alabama Supreme Court

93 So. 765

208 Ala. 12

LIVERPOOL & LONDON & GLOBE INS. CO. v. LOWE ET AL.

7 Div. 263.

Supreme Court of Alabama

June 8, 1922

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action by O. M. Lowe and others against the Liverpool & London &amp Globe Insurance Company for breach of agreement to insure. From an order overruling a motion for a new trial after judgment for plaintiffs, defendant appeals. Affirmed.

Hugh Walker, of Anniston, for appellant.

Hugh Reed, of Centre, and Hugh White, of Montgomery, for appellees.

THOMAS J.

The cause was submitted on motion and merits. The judgment rendered was of date of July 27th; the motion for new trial of date of August 23d, was passed by order of the trial judge to November 1, 1920, and then continued to a date to be fixed. The date for counting the time within which an appeal may be taken, and that for reckoning the time in which a bill of exceptions may be presented to the judge presiding at the trial, should not be confused.

An appeal must be taken within the time and manner indicated by statute; the time prescribed for appeal from such a judgment as that rendered in instant case being "within six months from the rendition." Gen. Acts 1915, p. 711, as amended by Gen. Acts 1919, p. 84. The appeal was taken by lodging with the clerk of the court good and sufficient security for the costs thereof, which bond (containing limited conditions) was filed and approved by the clerk on February 5, 1921. Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363; Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241. The date from which the time for the appeal may be reckoned (where motion for new trial is duly made) is the date of the due and final rendition of judgment on such seasonable motion for a new trial. Hence a proper motion for a new trial, seasonably called to the attention of the court and continued from time to time as required by law will affect the time in which an appeal may be taken. Wilder v. Bush, 201 Ala. 21, 23, 75 So. 143; Shipp v. Shelton, 193 Ala. 658, 662, 69 So. 102; Woodward Iron Co. v. Brown, 167 Ala. 316, 320, 52 So. 829; State, ex rel. Hamilton v. Kitchens, 148 Ala. 385, 389, 41 So. 871; Florence, etc., Co. v. Field, 104 Ala. 471, 476, 16 So. 538; Buck Creek L. Co. v. Nelson, 188 Ala. 243, 66 So. 476; Ex parte Mrs. A. M. Margart, 93 So. 505. The time of taking the instant appeal was within six months from November 1, 1920, the date to which the motion was duly continued. Notwithstanding this fact, appellant limited the conditions of the appeal bond; the scope and legal effect of its appeal being only from the judgment overruling its motion for a new trial. This is an appeal, under the statute, from a judgment overruling appellant's motion for a new trial. Acts 1915, p. 722. Respective counsel have so treated the appeal. So considering same, we do not pass upon the ruling on demurrer to count 2, or the court's instruction to the jury.

We come, then, to a consideration of appellee's motion to dismiss the amended motion, of date of January 26, 1921, on the ground that there was a discontinuance or departure from the original motion, preventing a consideration of that amendment. The record shows the original motion to have been filed on August 18, 1920, and duly continued by consent to November 1st, when the motion was continued to a date "to be fixed later by the court, on the agreement of counsel of the parties." It has been held that the general order of continuance is not efficacious as a due continuance of a motion for a new trial. Ex parte Mrs. A. M. Margart, 93 So. 505; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954; Mt. Vernon Woodbury Mills v. Judges, 200 Ala. 168, 75 So. 916; Shipp v. Shelton, supra; Ashford v. McKee, 183 Ala. 620, 62 So. 879; Sou. Ry. Co. v. Jones, 143 Ala. 328, 39 So. 118; Ex parte Highland Ave. & Belt R. Co., 105 Ala. 221, 17 So. 182. The circuit courts of the several counties of the state are open for the transaction of business from the first Monday in January to and including the last Saturday of June of every year, and from the first Monday after the 4th of July to and including the last Saturday before Christmas Day of every year. Gen. Acts 1915, p. 707, § 1; Clio Banking Co. v. Brock, 204 Ala. 57, 85 So. 297; Cleveland v. Little Cahaba Coal Co., 205 Ala. 369, 87 So. 567. The special continuance of the motion indicated was sufficient to carry that motion to a date to be fixed in January for its hearing. Mt. Vernon Woodbury Mills v. Judges, supra. The respective counsel have so considered in their arguments that such was the effect of the continuance of date of November 1, 1920. On January 26, 1921, defendant sought to amend its original motion by the addition of new matter amounting to a material departure from the original motion. Plaintiff's motion to strike was directed merely to defendant's motion as amended. In support of its motions-"as originally made and as amended"-defendant offered in evidence the file in said cause. It is recited that, after the hearing and argument of counsel for the parties on each side, "said motion as originally made and as amended" was overruled on January 26, 1921, to which action of the court defendant duly excepted and appealed as indicated. From the action of the court in overruling his motion for a new trial (Gen. Acts 1915, p. 722), defendant perfected his appeal on February 5th, and presented his bill of exceptions to the judge presiding, etc., on April 15th, who signed the same on June 23, 1921.

This bill of exceptions will be looked to as pertaining to matters contained in the respective motions for a new trial, for reasons we will now state. Massey v. Pentecost, 206 Ala. 411, 90 So. 866, 868; Pippin v. Perry, 206 Ala. 582, 91 So. 307; Code 1907, §§ 3019, 3020. The sole grounds of the original motion were that it had "a meritorious defense" to the suit, and "its failure to appear for trial on said

date (July 27, 1920) was not by reason of willful neglect but was occasioned by a misunderstanding on the part of its attorneys, in that said attorneys were under the impression and belief that said cause would not be set or called for trial in said court until during the month of October, 1920. ***" When considering defendant's motion, of date of August 18, 1920, to set aside the original judgment rendered July 27, 1920, it will be noted that the record and bill of exceptions show that plaintiff withdrew counts 1 and 3 (defendant having filed no pleas), and the judgment entry recites that on July 27, 1920, "defendant and its counsel, being called, failed to appear and answer in this cause; thereupon came a jury of good and lawful men, to wit, J. E. Webb and eleven others, who, being duly impaneled, sworn, and charged according to law, upon their oaths say: 'We, the jury, find the issues in favor of the plaintiffs and assess their damages at seventeen hundred seventy-five and 62/100 dollars.' It is therefore ordered and adjudged by the court that the plaintiffs have and recover of the defendant the said sum of seventeen hundred seventy-five and 62/100 dollars, the damages so assessed by the jury, together with all costs in this behalf expended, for which let execution issue." The bill of exceptions recites that, in support of the motion as originally made and as amended, defendant offered in evidence the file in said cause, and it was admitted by attorneys for plaintiffs that at the time of rendition of the judgment in the cause no pleas were on file. Thus is shown that no evidence was offered in support of the grounds contained in the original motion-of the meritorious defense to the suit or the nature and extent of any agreement of counsel that was pertinent, or that misled opposing counsel as to when the trial on the merits was to be had. The trial court cannot be put in error in exercising a sound discretion (Robinson v. Newton Groc. Co., 200 Ala....