Richburg v. Cromwell

Decision Date04 March 1983
Citation428 So.2d 621
PartiesEvelyn T. RICHBURG, et al. v. Gerlean CROMWELL, et al. 81-808.
CourtAlabama Supreme Court

Steve A. Baccus and J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Smith, Tuscumbia, for appellants.

Frank V. Potts and T. Michael Putnam of Potts, Young & Blasingame, Florence, for appellees.

PER CURIAM.

Defendants appeal from an order denying their motion for new trial or, in the alternative, JNOV.

We affirm.

Plaintiffs sued the defendants for damages for personal injuries and property damage arising out of an automobile accident. Defendants filed a counterclaim for damage to their vehicle.

The case was tried to a jury, which returned a verdict in favor of the plaintiffs and against the defendants on both the plaintiffs' claim and the defendants' counterclaim on February 3, 1982.

Defendants filed their motion for new trial on March 1, 1982. The motion was set for hearing on March 23, 1982, but no hearing was held on that date, and no order was entered continuing the hearing to a date certain. Significantly, no evidence by affidavit or otherwise was offered in support of the motion, neither on the day set for hearing nor at any time prior to May 31, 1982, when the same was overruled by operation of law. Alabama Rules of Civil Procedure, Rule 59.1.

Thereafter, without notice to the plaintiffs and after notice of appeal was filed, the defendants sought to supplement the record on appeal by including evidence in support of their motion for new trial. The trial court first allowed the motion but thereafter set its order aside and vacated the same because the evidence sought to be included in the record on appeal was never offered in the trial court.

Defendants now claim error by the trial court in two particulars: First, in not granting a new trial because of alleged misconduct on the part of a juror; and second, in vacating its order allowing the record on appeal to be supplemented. Assuming that the evidence offered, after notice of appeal was filed, in support of the motion for new trial was sufficient to require a new trial, which we do not decide, it came too late and was not properly presented to the trial court. Defendants merely sought to include in the record on appeal, and ask us to review, evidence which was never presented to the trial court. This we cannot do. We review alleged error of the trial judge only. In the posture of the case before us, there is nothing to review.

The defendants' motion...

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44 cases
  • Dobyne v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 15, 1994
    ...Rule 10(f) [now 10(g) ], A.R.App.P., governs the omission of material that was actually a part of the record below. Richburg v. Cromwell, 428 So.2d 621 (Ala.1983); Williams v. City of Northport, 557 So.2d 1272 (Ala.Civ.App.1989), cert. denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 45 (U.S......
  • Williams v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 23, 1996
    ...include matters that were in evidence at the trial level and that were inadvertently omitted from the record on appeal. Richburg v. Cromwell, 428 So.2d 621 (Ala.1983). The trial court properly denied the appellant's motion to supplement the record on appeal with a copy of the April grand ju......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 19, 1997
    ...appellant's trial. Rule 10(f), A.R.App.P., governs the omission of material that was actually a part of the record below. Richburg v. Cromwell, 428 So.2d 621 (Ala.1983); Williams v. City of Northport, 557 So.2d 1272 (Ala.Civ.App.1989), cert. denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 4......
  • Coleman v. BAC Servicing
    • United States
    • Alabama Court of Civil Appeals
    • September 7, 2012
    ...was deemed denied on Monday, December 27, 2010. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala.1983). * Note from the reporter of decisions: On June 29, 2012, the Alabama Court of Civil Appeals withdrew the March 9, 2012, o......
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