Pacific Fire Ins. Co. of New York v. Burnett

• Decision Date: 06 November 1924
• Docket Number: 4 Div. 149
• Citation: 102 So. 214,212 Ala. 287
• Parties: PACIFIC FIRE INS. CO. OF NEW YORK v. BURNETT.
• Court: Alabama Supreme Court

102 So. 214

212 Ala. 287

PACIFIC FIRE INS. CO. OF NEW YORK v. BURNETT.

4 Div. 149

Supreme Court of Alabama

November 6, 1924

Rehearing Denied Dec. 4, 1924

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Action in detinue by the Pacific Fire Insurance Company of New York against Mrs. M.E. Burnett. From a judgment for defendant plaintiff appeals. Affirmed.

Sayre Miller, and Bouldin, JJ., dissenting.

Rushton Crenshaw & Rushton, of Montgomery, and E.O. Baldwin, of Andalusia, for appellant.

Powell, Albritton & Albritton, of Andalusia, for appellee.

THOMAS J.

The action was detinue to recover a Marmon automobile. The complaint as amended described the property claimed as one Marmon 1918 model touring car, now numbered 7181880, motor now numbered 92888. Upon filing original complaint the sheriff did not take the property in possession, for the reason stated in his return that he was unable to locate the property because of the indefiniteness of its description in the complaint. An alias writ was issued, and defendant gave the statutory bond and retained the possession of the car. The trial, on plea of the general issue, resulted in a verdict for the defendant.

Plaintiff's motion for a new trial, assigning, among other grounds, that the verdict was contrary to the great weight of the evidence, was overruled. The only question of law involved is the identity of an automobile found in the possession of the defendant at Andalusia, Ala., in March, 1922, and the automobile that was stolen in Chicago, Ill., in April, 1919.

The evidence for plaintiff shows that when the assembled parts of a car--the body, engine or motor, transmission, rear axle, front axle, steering gear, generator--are put together and leave the factory they have serial numbers. Thus the factory assembling record of each car is different from that of other cars of the same or different make.

The evidence for the respective parties, or inferences which may be drawn therefrom, were in conflict. The questions of fact should have been submitted to the jury. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

If the judgment on the motion is sufficient in form, we are brought to a consideration of the weight of the evidence within the rules obtaining. The bill of exceptions recites that the motion for a new trial "came on for hearing on the 28th day of September, 1923, and the plaintiff introduced on such hearing the testimony which had been heard on the trial of the case. The court overruled the motion for the new trial, and to such action of the court the plaintiff duly and legally excepted."

The foregoing is a mere recital of the fact that the motion was overruled. This was sufficient for the purpose. Stokes v Hinton, 197 Ala. 230, 72 So. 503. It must be conceded that, if a judgment granting the motion had been rendered, the foregoing would have been insufficient as a formal judgment on the motion to set aside the judgment of the court theretofore entered pursuant to the verdict of the jury. Ex parte Doak, 188 Ala. 406, 66 So. 64; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Wells v. State, 19 Ala.App. 403, 97 So. 681; Gray v. State, 55 Ala. 86; 1 Black on Judgments, § 115, p. 124. The statute provides that the decision of the court on the motion may be reduced to writing, etc., and included in the bill of exceptions if the same is to be reviewed by this court. Code 1907, § 2846, as amended by Acts 1915, p. 722; Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389. The decision of the court on the motion was a declination to disturb the formal judgment shown in the record proper. This fact and the exception to such action of the court are duly shown by the quoted excerpt from the bill of exceptions. Thus we are brought...