Richards v. Williams

Decision Date23 January 1936
Docket Number6 Div. 846
PartiesRICHARDS v. WILLIAMS.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; Wm. L. Hogue, Special Judge.

Action by Davis U. Williams against Harriet Elizabeth Richards, as executrix of the will of Charles E. Eckerle, deceased. From a judgment for plaintiff, defendant appeals.

Affirmed.

J Reese Murray, of Birmingham, for appellant.

Robt. E. Smith, of Birmingham, for appellee.

THOMAS Justice.

The judgment was rendered on the 15th day of March, 1935; the motion for a new trial overruled on the 27th day of May 1935; the appeal taken September 19th and citation served on the 20th of September, 1935. The bill of exceptions was presented on August 23, 1935, signed by the judge presiding in court on October 14, 1935, and fails to set forth the motion for a new trial and the ruling thereon.

The security for costs was in terms, "for costs of appeal to the Supreme Court in the above case, returnable to the present term thereof. And for the payment of the above bond, we hereby waive our right of exemption to personal property under the Constitution and Laws of the State of Alabama."

The citation of appeal of date of September 20, 1935, recited the names of the respective parties; was issued to appellee or his attorney of record, citing him "to appear at the next term, 1935, of the Supreme Court of Alabama, to defend on said appeal, if" he should think proper to do so.

The appeal will be taken and considered as from the decision and judgment of date of March 15, 1935, and not that on the motion of date of May 27, 1935.

The appellee-movant contends that the failure of the bill of exceptions to include the decision of the court on the motion and the evidence taken in support of the motion, "notwithstanding the fact that there is a reference to the same in the minute entry as required under section 6088 (Code), leaves before the court for consideration one judgment--that of March 15, 1935. There is no other judgment before this court. The appeal must relate back to the original judgment, there being nothing subsequent to that time upon which the appeal may properly relate."

We will now consider this primary question: What was the effect of the motion for a new trial, its respective continuances to May 23d for the hearing and submission on the motion, and the decision thereon of date of May 27, 1935?

The failure of the appellant to reserve an exception to review the action of the court in the ruling on the motion in the bill of exceptions, the correctness of that ruling and judgment entered is not now presented. However, did the motion have the effect of suspending the operation of the judgment entered pursuant to the verdict of the jury, as affecting the time when an appeal may be taken? For the purpose of an appeal, did the six months run from the date of May 27, 1935, the date of the ruling on the motion, within the term, and at a time of its due continuance?

The foregoing facts and motion to dismiss the appeal and strike the bill of exceptions will be tested by or within the following established rules, or the analogy therefrom: (1) The rules that here obtain as to finality of judgments and motions for new trials are the same as before the act of 1915, Acts 1915, p. 722. Patterson v. State, 229 Ala. 270, 156 So. 567. (2) If an appeal is not taken within the period of the statute, a question of jurisdiction is presented to this court. Gunter v. Mason, 125 Ala. 644, 27 So. 843; Folmar et al. v. First Nat. Bank of Montgomery, 223 Ala. 625, 137 So. 777; Tatum v. Williams (Ala.Sup.) 164 So. 387. (3) If there was a motion for a new trial and the motion was duly continued to a hearing and decision, the time within which an appeal may be taken under the statute is counted from the date of the judgment entered on that motion. Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; King v. Scott, 217 Ala. 511, 116 So. 681; Collins Paving Co. v. Holseapple, 221 Ala. 308, 128 So. 599. (4) The fact that no exception was reserved, or question duly presented by the bill of exceptions to the judgment rendered on the motion, does not change the rule as to time within which an appeal may be taken. (5) The last indicated rule held not to apply to default judgment and motion to set it aside. Collins Paving Co. v. Holseapple, supra. (6) If there was a motion for new trial, duly continued, and submitted within the term, taken by the court for decision, and judgment sought to be pronounced beyond the term, or declined for lack of jurisdiction, the time within which the appeal may be taken is counted from the date of judgment on the trial. Folmar et al. v. First Nat. Bank of Montgomery, 223 Ala. 625, 137 So. 777; Cain v. Jefferson Standard Life Ins. Co., 227 Ala. 458, 150 So. 689; Stallings v. Clark et al., 218 Ala. 31, 117 So. 467. (7) That a determination on the merits of a motion for new trial, without objection to the court's authority to hear the same, because of the record's failure to show order of continuance, is waiver thereof, barring complaint on appeal. King v. Scott, 217 Ala. 511, 116 So. 681; Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; Hollingsworth et al. v. Miller et al., 212 Ala. 187, 101 So. 881. The effect of these decisions is, that a motion for a new trial has the effect of suspending the running of the statute and affecting the time within which an appeal may be taken and maintained, only where there is a valid judgment on such motion.

It follows from the aforestated facts, that the appeal in this case was taken within the period of the statute (Tatum v. Williams, supra), and that no lack of jurisdiction is presented. The motion to dismiss the appeal is, therefore, denied, and the motion to strike the bill of exceptions is overruled.

The overruling of the motion to grant a new trial upon the ground that the verdict is excessive is assigned as error. This motion was not embraced in the bill of exceptions; hence there is nothing presented for review, as we have indicated. There was evidence, which, if believed, authorized the verdict rendered. Southern Railway Co. v. Kirsch, 150 Ala. 659, 43 So. 796.

The plaintiff testified to no "transaction with or statement by the decedent," but to the collateral fact that he rendered services, and the reasonable value of these services at the time and place. This was not a violation of the statute. Section 7721, Code. Warten et al. v. Black, 195 Ala. 93, 70 So. 758; Southern Natural Gas Co. v Davidson, 225 Ala. 171, 142 So. 63; Hunt et al. v. Murdock, 229 Ala. 277, 156 So. 841. See, also, Qualls v. Monroe...

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  • Williams v. Knight, 8 Div. 731
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    ... ... opposing counsel waive the delay, or unless jurisdiction is ... retained by the decree." 230 Ala. 687, 163 So. 327, 328 ... It may ... not be out of place to observe that the general and ... recognized rules governing such questions at law were ... recently stated in Richards v. Williams, 231 Ala ... 450, 165 So. 820, 822, 823, after collecting several classes ... of our decisions, as follows: "The effect of these ... decisions is, that a motion for a new trial has the effect of ... suspending the running of the statute and affecting the time ... within which an ... ...
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