McCarver v. Herzberg

• Decision Date: 21 January 1903
• Citation: 135 Ala. 542,33 So. 486
• Parties: MCCARVER v. HERZBERG ET AL. [*]
• Court: Alabama Supreme Court

33 So. 486

135 Ala. 542

MCCARVER v. HERZBERG ET AL. ^[*]

Supreme Court of Alabama

January 21, 1903

Appeal from city court of Gadsden; John H. Disque, Judge.

Action of ejectment by H. Herzberg and others against W. W McCarver. Verdict for plaintiffs. From an order denying motion for a new trial, defendant appeals. Reversed.

This was a common-law action of ejectment to recover lands specifically described in the declaration. The cause was tried by the court without the intervention of a jury, and on May 21, 1900, a judgment was rendered in favor of the plaintiffs, assessing the damages at $75. On May 31, 1900 the defendant made a motion for a new trial, which was in words and figures as follows: "Now comes the defendant and moves the court for a new trial as to the damages rendered against the defendant in the judgment of May 21st 1900, to wit, in the sum of seventy-five dollars, on the following grounds, to wit: (1) Said judgment is contrary to the evidence. (2) It is not supported by the evidence. (3) It is contrary to law." The record shows the following entries: "31st day of May, 1900, it is ordered by the court that this motion be continued to July 2d, 1900. July 2d, set for Aug. 20. Sept. 2d, passed to Oct. call. Nov. 7th, set for Nov. 30th. Nov. 30th, set for Dec. 22d. Apr. 21st, set for June 14th." On June 14, 1901, the motion for a new trial was overruled. On June 29th the defendant was granted 30 days from that date to file a bill of exceptions. The bill of exceptions was signed on July 23, 1901. The defendant appealed from the judgment overruling the motion for a new trial, and assigned as error the rendition of said judgment, and also assigned as error the rulings of the trial court upon the evidence which were made during the trial of the original case. In this court the appellees made a motion to strike the bill of exceptions and the assignments based thereon, because said bill of exceptions was not signed within the time authorized by law. The other facts of the case are sufficiently stated in the opinion.

James Aiken. for appellant.

P. E. Culli, for appellees.

TYSON J.

Confessedly, the bill of exceptions cannot be looked to for the purpose of reviewing exceptions reserved upon the trial of the cause, but it is properly a part of the record for the purpose of reviewing the action of the court in overruling the motion for the new trial, provided it was signed in time, and the motion was not discontinued. Bank of Dothan v. Wilks, 132 Ala. 573, 31 So. 451; Ala. Midland R. Co. v. Brown, 129 Ala. 282, 29 So. 548. The motion was heard, and determined adversely to the appellant, on the 14th day of June, 1901, and the bill of exceptions was signed on the 23d day of July following. On the 29th day of June, 1901,--the last day of the term at which the motion was heard,--an order was entered allowing defendant 60 days within which to have the bill of exceptions signed. From this statement it is clear that it was signed in time. Acts, 1900-1901, p. 1288.

The next proposition insisted upon in support of the motion to strike the bill of exceptions is that the motion for the new trial was discontinued. Conceding--and doubtless it is true--that the recitals in the records show that there was a discontinuance of the motion for a new trial by a failure to enter an order of continuance of it at the term immediately preceding the one at which it was heard and disposed of, yet the discontinuance does not seem to have been insisted upon in the court below. On the contrary, it appears that both parties appeared, and proceeded to trial on the merits of the motion, and that the decision of the court was upon the merits. This was clearly a waiver of the discontinuance. Kennedy v. Pickering, Minor, 138; McRory v. Vinzant Id. 401; Ex parte Hall, 47 Ala. 675; Reeves v. State, 96 Ala. 33, 11 So. 296; ...