Rayburn v. Crocker

• Decision Date: 31 October 1944
• Docket Number: 2 Div. 731.
• Citation: 31 Ala.App. 542,19 So.2d 554
• Parties: RAYBURN v. CROCKER.
• Court: Alabama Court of Appeals

19 So.2d 554

31 Ala.App. 542

RAYBURN v. CROCKER.

2 Div. 731.

Alabama Court of Appeals

October 31, 1944

Appeal from Circuit Court, Marengo County Emmett F. hildreth, judge.

Arthur W. Stewart, of Marion, and Pitts & Pitts, of Selma, for appellant.

T.H Boggs, of Linden, for appellee.

RICE Judge.

The pleadings in this case were very simple. It was a suit in detinue by the appellee against the appellant seeking the recovery of the possession of one "red rhone (roan) heifer cow about one and one half years old and weighing about 350 pounds."

It was begun in a Court of a Justice of the Peace, where judgment was rendered in favor of appellee.

Appeal being taken to the Circuit Court, it was tried before a jury. Verdict and judgment were again rendered in favor of appellee.

Motion for a new trial being made, overruled, and exception reserved, this appeal followed.

It was tried in both courts, below, on a single count in the complaint, as suggested, and the plea of non detinet--which is the "general issue."

In this situation, of course, the right of plaintiff (appellee) to recover was put in issue; and evidence negativing the right of possession of plaintiff or of defendant (appellant) was competent. Knight v. Garden, 196 Ala. 516, 71 So. 715; Berlin Machine Works v. Alabama City Furniture Co., 112 Ala. 488, 20 So. 418.

The sole assignment of error on the record is that the trial court erred in overruling appellant's motion for a new trial--as appellant's counsel phrase it: "The trial court erred in refusing to set aside the verdict of the jury rendered in this case and grant unto the appellant a new trial."

Commendably--for our convenience--their brief states: "Counsel for appellant have decided not to assign as error the omission (admission) or rejection of evidence objected to and to which exceptions were taken because, after a full reading of the record, counsel for the appellant are of the opinion that, while there were several errors committed, yet, as the evidence was subsequently admitted without objection, the errors were errors without injury."

So we consider the action of the court in overruling appellant's motion to set aside the verdict of the jury and grant her a new trial.

The motion contained an even dozen grounds; and there may be one that covers counsel's argument here that there was a variance between the allegata and probata in that, whereas the "red roan heifer" sued for was one "weighing 350 pounds", the one described in appellee's testimony on the trial was "one weighing 450 pounds."

But obviously the argument is without pith. Even if there were a variance shown appellant's remedy was by a compliance with rule 34 of "Rules of Practice in the Circuit and Inferior Courts of Common Law Jurisdiction," Code of 1940, Tit. 7 Appendix, p. 1035, and not by a motion for a new trial. As the then Presiding Judge Walker said for this Court in his opinion in the case of McWhorter et al. v. Haigler Mercantile Co., 4 Ala.App. 296, 58 So. 790: "A party is not entitled to another trial to enable him to present a question which he had full opportunity to present in the trial already had, especially when no excuse is shown for his failure to raise the question at the proper time."

As for the argument--irrelevant we believe to the motion on file--that said motion should have been granted because of improper conduct on the part of the jurors trying the case in discussing among themselves during their deliberations some rumored, supposed or proposed action of the Grand Jury of the County, then in session, with reference to appellant's possession--or getting possession--of the property in suit, it is only necessary to remark that testimony as to the jurors doing such--if they did--was "on the grounds of public policy" not admissible. Even if it was admitted it should not have been considered by the court. Mullins v. State, 24 Ala.App. 78, 130 So. 527, certiorari denied 222 Ala. 9, 130 So. 530.

We arrive then at the popular, earnest, eager and assiduous counsel's main...