Savas v. Palmer

• Decision Date: 21 February 1939
• Docket Number: 8 Div. 717.
• Citation: Savas v. Palmer, 186 So. 784, 28 Ala.App. 458 (Ala. App. 1939)
• Parties: SAVAS v. PALMER.
• Court: Alabama Court of Appeals

186 So. 784

28 Ala.App. 458

SAVAS v. PALMER.

8 Div. 717.

Court of Appeals of Alabama

February 21, 1939

Appeal from Circuit Court, Madison County; Schuyler H. Richardson Judge.

Action in assumpsit by Jimmie Palmer against Charles Savas, doing business as Olympia Confectionery.From a judgment granting plaintiff's motion for a new trial, defendant appeals.

Affirmed.

Thos W. Layne and Robt.K. Bell, both of Huntsville, for appellant.

Griffin & Ford, of Huntsville, for appellee.

RICE Judge.

Appellee sued appellant on the common counts for work and labor done.The jury returned a verdict in favor of appellant.

But upon appellee's motion this verdict, and the judgment rendered thereon, were set aside.

Appellant brings this appeal from the judgment granting appellee's said motion; the entering of said judgment being the only error assigned.

In a comparable situation, Mr. Chief Justice Anderson, for the Supreme Court, used the following language, which we deem appropriate to be quoted here, and decisive of this appeal to-wit: "The first three assignments of error, as well as the chief argument in brief of appellant's counsel relate to the action of the trial court in refusing the appellant's motion for a new trial.It is sufficient to say that the bill of exceptions does not disclose any exception to the action of the trial court in overruling the motion for a new trial.The fact that this may appear in the record proper will not suffice.* * * We cannot therefore review the action of the trial court in refusing the motion for a new trial."Standard Paint & Lead Works, Inc. v. Ingram Hardware Company,221 Ala. 374, 129 So. 20, 21--citingEx parte Grace, Grace v. Old Dominion Garment Co., 213 Ala. 550, 105 So. 707.

We apprehend the law is the same whether it is sought to review the action of the lower courtrefusing, or granting, a motion for a new trial(e. g., Grand Bay Land Co. v. Simpson,202 Ala. 606, 81 So. 548, was an appeal from an order granting such a motion); and, concerning such matters, as said by Mr. Justice Bouldin in the case of Ex parte Grace, Grace v. Old Dominion Garment Co.supra[213 Ala. 550, 105 So. 708]: "In bringing up for review the ruling of the lower court * * * the bill of exceptions must contain a sufficient recital to show * * * an exception thereto."(Italics ours).And seeDavis v. State,25 Ala.App. 412, 147 So. 649.

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