Shaw v. Knight

• Decision Date: 15 January 1925
• Docket Number: 1 Div. 280
• Citation: 102 So. 701,212 Ala. 356
• Parties: SHAW v. KNIGHT.
• Court: Alabama Supreme Court

102 So. 701

212 Ala. 356

SHAW v. KNIGHT.

1 Div. 280

Supreme Court of Alabama

January 15, 1925

Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.

Action by L.E. Shaw against W.S. Knight. From a judgment for defendant, plaintiff appeals. Affirmed.

See also, 210 Ala. 700, 98 So. 921.

Granade & Granade, of Chatom, for appellant.

Joe M Pelham, Jr., of Chatom, for appellee.

GARDNER J.

Appellant sued appellee in assumpsit on common counts, and, also, for the recovery of the value of certain timber belonging to plaintiff, alleged to have been cut by defendant, and for statutory penalty therefor.

Defendant pleaded the general issue, payment, and set-off. The cause was tried before the court without a jury, and special finding of facts was requested. Section 9500, Code 1923. The court found against a recovery by the plaintiff on any of his counts, and against a recovery by defendant on his plea of set-off, and rendered judgment accordingly, from which plaintiff has prosecuted this appeal.

The judgment was rendered December 14, 1922, after which motion for a new trial was presented. Judgment denying the motion for new trial was entered September 1, 1923, and bill of exceptions presented November 23, 1923. The appeal is expressly taken from the judgment denying the motion for new trial, and the bill of exceptions is to be considered in a review of the judgment on said motion. McMillon v Skelton, 208 Ala. 693, 95 So. 148; General Ordnance Co. v. Bowen, 209 Ala. 574, 96 So. 753; Dees v Lindsey Mill Co., 210 Ala. 183, 97 So. 647; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; section 6088, Code 1923.

It is well settled, however, that:

"An appeal from an order granting a new trial brings up for revision only the order appealed from, and does not extend to the correction of errors occurring in the main trial; such errors, if they exist, can be considered only as they affect the propriety of the order granting the new trial." Karter v. Peck, 121 Ala. 636, 25 So. 1012.

We need only consider, therefore, the matters presented by the several grounds set out in the motion for a new trial; all other questions argued as upon the main trial not being within the purview of this appeal. The trial was begun on October 20, 1922, and after the taking of some of the evidence was suspended to November 16 thereafter, and on this latter date was further suspended to November 27; all of which appears from this record to have been done pursuant to agreement of the parties. That ground of the motion, therefore, to the effect that plaintiff was injuriously affected by the trial of the cause by "piecemeal" is clearly without merit. Nor do we find any reversible error in the action of the court proceeding with a consideration of the cause on November 27th, notwithstanding the absence of the court reporter at that time. The refusal of a continuance on this ground was a matter resting in the sound discretion of the trial court, and no abuse of this discretion is shown.

As to the ground of newly discovered evidence, aside from any other question, it was not shown that "due diligence had been unavailingly used by the movant prior to the trial." Gilbreath v. Bain (Ala.Sup.) 101 So. 762.

The evidence was in sharp conflict. The trial court saw and heard the witnesses, and, under the rule long prevailing here, his conclusion on the facts will not be disturbed, unless plainly wrong. A discussion of the evidence would serve no useful purpose. Suffice it to say it has been carefully examined, and the conclusion reached that the judgment rendered should not be disturbed upon the ground that it is contrary to the evidence.

Prior to the amended statute (section 5361, Code 1907), it was the uniform holding of this court that the consideration on appeal...