Mobile Light & R. Co. v. Hansen

• Court: Alabama Supreme Court
• Writing for the Court: TYSON, J.
• Citation: Mobile Light & R. Co. v. Hansen, 135 Ala. 284, 33 So. 664 (Ala. 1903)
• Decision Date: 12 February 1903
• Parties: MOBILE LIGHT & R. CO. v. HANSEN.

33 So. 664

135 Ala. 284

MOBILE LIGHT & R. CO. v. HANSEN.

Supreme Court of Alabama

February 12, 1903

Appeal from circuit court, Mobile county; Wm. S. Anderson, Judge.

Action by Ed. Hansen against the Mobile Light & Railroad Company. From an order setting aside a nonsuit, defendant appeals. Appeal dismissed.

After the introduction of the plaintiff's evidence, the defendant moved to exclude all of such evidence upon the ground that said evidence did not make out a prima facie case. The court granted this motion, and to this ruling the plaintiff duly excepted. Thereupon the plaintiff, in consequence of such adverse ruling, took a nonsuit. Subsequently, during the same term, the plaintiff moved the court "to set aside the nonsuit taken by the plaintiff and to grant plaintiff a new trial, upon the ground that the court erred in striking out the evidence, when the plaintiff rested his case." This motion was granted by the court and a judgment was entered, which was as follows: "This day came the parties by their attorneys, and, the plaintiff's motion to set aside the nonsuit taken by the plaintiff in this cause, and grant him a new trial, having been submitted to the court at a previous day of this term together with all other papers in this case, * * * it is ordered and adjudged by the court that the plaintiff's said motion to set aside the nonsuit taken by the plaintiff in this cause, and grant him a new trial, be, and the same is hereby, granted." To this ruling of the court the defendant duly excepted.

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

L. H. &amp E. W. Faith, for appellee.

TYSON J.

This appeal is prosecuted from an order of the circuit court setting aside a nonsuit taken by the plaintiff. A motion is made here to dismiss the appeal. This motion must be granted unless the order setting aside the nonsuit was the granting of a new trial within the purview of section 434 of the Code, authorizing an appeal from an order granting or refusing a motion for a new trial. In Truss v. B. L. G. & M. R. R. Co., 96 Ala. 316, 11 So. 454, the question arose as to whether an order setting aside a judgment by default was the granting of a new trial within the meaning of this statute. It was held that it was not, and the appeal dismissed. The court said: "A new trial is defined to be a 're-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees.' There is nothing in the act of February 16, 1891 [section 434, Code], which suggests a different meaning for the words 'new trial' from that they have at the common law. On the contrary, the requirement of the statute that the substance of the...