Mobile & B. R. Co. v. Louisville & N. R. Co.

• Decision Date: 02 February 1911
• Citation: 172 Ala. 313,54 So. 1002
• Parties: MOBILE & B. R. CO. v. LOUISVILLE & N. R. CO. ET AL.
• Court: Alabama Supreme Court

54 So. 1002

172 Ala. 313

MOBILE & B. R. CO. v. LOUISVILLE & N. R. CO. ET AL.

Supreme Court of Alabama

February 2, 1911

On Rehearing, April 27, 1911.

On Rehraring.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the Louisville & Nashville Railroad Company and others against the Mobile & Birmingham Railroad Company. From an order granting a new trial, defendant appeals. Affirmed.

Bestor Bestor & Young, E. L. Russell, and B. B. Boone, for appellant.

Gregory L. & H. T. Smith, for appellees.

McCLELLAN J.

The appeal is from an order granting a new trial. Among the grounds therefor was this: "Because, while viewing the premises, the judge allowed the witness Miller, in conversation with said judge, to review and argue the evidence on many of the material questions in controversy and to point out and explain matters, some of which said witness was not competent to testify to, and others of which related to matters to which objection had been sustained during the trial, which said statements by said witness to the judge were made in such manner and under such circumstances that no report thereof could be made by the official stenographer, and no proper objection could be taken thereto by the attorneys in the cause, all as shown by an affidavit herewith filed."

The bill of exceptions, in the particular that it refers to the motion for new trial, does not purport to contain all of the evidence offered before the court on the hearing of the motion. In such state of the case, the presumption must be and is indulged that there was evidence before the court justifying its conclusion, and the granting of the motion on the ground quoted.

Affirmed.

DOWDELL, C.J., and SIMPSON and MAYFIELD, JJ., concur.

On Rehearing.

PER CURIAM.

The insistence of counsel for appellant that this court proceed to a determination of the more material questions involved in this controversy, rather than that the decision should be rested on the proposition stated in the opinion, is a matter which was considered by the court on the original hearing. The investigation of those questions, as presented by the record and assignments of error, was thoroughly made by the Justice to whom the appeal was assigned for the preparation for an opinion thereon for submission to the consultation of the court; but, since the result (affirmance) was inevitable on the ground stated in the opinion on...