Mangino v. Todd

• Decision Date: 04 December 1923
• Docket Number: 8 Div. 123.
• Citation: 19 Ala.App. 486,98 So. 323
• Parties: MANGINO v. TODD ET AL.
• Court: Alabama Court of Appeals

98 So. 323

19 Ala.App. 486

MANGINO v. TODD ET AL.

8 Div. 123.

Court of Appeals of Alabama

December 4, 1923

Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.

Suit by Carlo Mangino, by his next friend, Louis Mangino, against L T. Todd and another. Verdict for plaintiff. From a judgment setting aside the verdict and granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

J. Foy Guin, of Russellville, for appellant.

Key & Key, of Russellville, for appellees.

BRICKEN P.J.

This appeal is from an order of the trial court is setting aside the verdict of the jury, which was returned in favor of the plaintiff, and in granting the defendant in the court below a new trial.

There are several assignments of error, all relating to this one question.

Appellant plaintiff below, sued appellee, defendants, for an alleged unlawful assault upon the plaintiff by a deputy sheriff of Franklin county. The defendants in said action were the sheriff and the surety on his official bond.

Upon the trial of the case there was a jury verdict for the plaintiff for the sum of $500 damages, and a judgment was accordingly entered against the defendants for said sum of $500, together with the costs, which judgment appears to have been entered upon the minutes of the trial court on the 14th day of August, 1922. On the 23d day of August, 1922, the defendants filed their motion to set aside the verdict of the jury and the judgment entered in said cause and to grant a new trial upon the following grounds: (1) The verdict of the jury was contrary to law and the charge of the court; (2) the verdict of the jury was contrary to the evidence; (3) the verdict of the jury was contrary to a preponderance of the evidence; (4 and 5) the evidence as a whole presented a complete defense to plaintiff's action; (6) the evidence disclosed that defendant acted in self-defense; (7) newly discovered evidence that plaintiff was not engaged in a legitimate business at the time and place of the alleged assault; (8) said newly discovered evidence had come to the knowledge of the defendants since the trial of said cause and could not have been discovered prior thereto by due diligence; (9) that the plaintiff and his companion testified upon the trial of said case that, at the time of said alleged assault, they were returning from the home of the uncle of the plaintiff where the plaintiff had been to collect a debt and that said evidence was willfully false.

Attached to said motion was the affidavit of one William Maro to the effect that said William Maro was not related to the plaintiff by blood or marriage and that, on the night plaintiff was shot, the plaintiff did not come to the home of said William Maro. One James Maro also made affidavit that the facts stated in the affidavit of William Maro were true. Said affidavits, together with all the original evidence offered upon the trial of said case, was all the evidence offered in support of the motion as stated in the bill of exceptions. Said motion was in writing and is set out in the record proper, and is therefore properly presented by said record. General Acts of Alabama, 1915, p. 598; Powell v. Folmar; 201 Ala. 271, 78 So. 47; Stover v. State, 204 Ala. 311, 85 So. 393; Acts 1915, p. 722.

The trial court rendered a judgment on said motion granting the same and setting aside the verdict of the jury in said case and directing the clerk to restore said case to the trial docket. The record presents the formal judgment entered upon said motion.

As stated, the appeal in this case was taken by the appellant from the judgment of the trial court upon the motion for a new trial.

The appellees contend that this court cannot consider this appeal: First, because the bill of exceptions does not include the motion; and, second, because the bill of exceptions does not include the judgment on the motion, and the case of Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389, is cited in support of appellees' position.

The position of the appellees cannot be sustained with respect to this insistence. The Act of 1915, p. 722, does not require the motion for a new trial to be set out in the bill of exceptions. The motion being in writing is a part of the record in said case and is properly presented by the record and not by the bill of exceptions. Powell v. Folmar, supra. The case of Birmingham Waterworks Co. v. Justice, supra, cited by appellees, is an authority to the effect that where the decision of the trial court upon a motion for a new trial is shown both by the record proper and the bill of exceptions, the recitals in the bill of exceptions will control, and this for the reason that the Act of 1915, p. 722, requires that the decision of the trial court upon the motion for a new trial shall be presented by the bill of exceptions.

The bill of exceptions in this case shows that a motion for a new trial was filed. It shows the substance of the evidence offered in support of said motion. It shows the decision of the court in the following language:

"November 18, 1922, motion granted and the plaintiff excepts and the verdict of the jury is set aside and held for naught and the clerk will restore said cause to the trial docket.

"C. P. Almon, Judge."

It also shows that the plaintiff reserved an exception to the decision of the court. We therefore hold that the bill of exceptions in this case presents for our consideration the decision of the trial court upon the motion for a new trial in compliance with every requirement of the Act of 1915, p. 722. Birmingham Waterworks Co. v. Justice, supra; Powell v. Folmar, supra; Bank of Tallassee v. Elmore Fertilizer Co., 16 Ala. App. 465, 78 So. 648; Patterson v. Holt, 16 Ala. App. 439, 78 So. 637; Benton v. State, 16 Ala. App. 192, 76 So. 476; Stover v. State, 204 Ala. 311, 85 So. 393.

It is a rule of recognized standing in this state that an appellate court will not reverse the findings of the trial court on evidence given ore tenus by witnesses before the trial judge who has the opportunity to observe them and their bearing, unless the appellate court is clearly convinced that the judgment of the trial court is wrong and unjust.

In considering the questions presented, this court will be governed by the recitals in the bill of exceptions as to the decision of the trial court upon said motion, and that is that the motion was granted, and that the plaintiff excepted, and that said judgment was set aside and the case ordered to be restored to the trial docket, and, in so doing, we will consider the motion upon each and every ground presented and the testimony offered in support thereof, and determine whether or not the judgment of the trial court upon the motion for a new trial should be reserved and annulled and the cause remanded with directions to the trial court.

The plaintiff contended in the court below that in the early morning of May 21, 1921, while riding along a public highway of Franklin county, Ala., in a buggy with a companion, he was assaulted and shot by a deputy sheriff of said county without justification or excuse. That is to say, the plaintiff was unlawfully assaulted and shot by said officer. It is not denied that L. T. Todd, one of the defendants, was the sheriff of Franklin county, and it further is not denied that the United States Fidelity & Guaranty Co., the other defendant, at the time of the alleged shooting was the surety on the official bond of said sheriff. It was admitted that Sid Malone was a deputy sheriff of the defendant L. T. Todd and that he was armed with a shotgun and a pistol, and that the shooting done by him was with a pistol. It is further shown by the testimony of Dr. L. J. Graves that the plaintiff received a gunshot wound in the left leg, three or four inches below the kneecap, and that said wound appeared to have made by a shot from a pistol of rather large caliber which went in from behind the leg and passed between the two bones of the leg. It thus appears from the record that the plaintiff, beyond controversy, established the allegations of his complaint unless he was shot by the deputy sheriff under such circumstances as justified the shooting.

It was contended by the defendants that if the plaintiff was shot by a deputy sheriff, as alleged in his complaint, such shooting was done in self-defense.

Counsel for the appellees state the facts of their defense in brief as follows:

"The sheriff's posse went out on the morning of May 21, 1921, to raid a still, which they did, and, after doing so were waiting by the roadside near where the still had been raided. They heard a conveyance coming, and, as one of the witnesses said, they thought it was one of the wildcatters 'getting away with the booze.' The men in the buggy looked like the men that the deputies were after, and, when the deputies undertook to halt the buggy to ascertain if they were the men that they were after, the men in the buggy whipped up the mule and one of them raised up and pulled what the deputies took to be a pistol from his pocket. Thereupon the deputies fired. That the men threw a bottle of whisky from the buggy and kept driving. One of these men in the buggy was the plaintiff, who got shot. The officers believed that the plaintiff and his companion were the men who had been making whisky. That the plaintiff was some five or ten miles from his home at two o'clock in the morning. That the plaintiff and his companion were violating the prohibition law, in that they had a bottle of whisky, even if they had not been manufacturing it."

Arrests in this state may be made by an arresting officer with a warrant as is provided in section 6268 of the Code of Alabama of 1907, and an arrest may also be made by an...