Shelley v. Clark, 4 Div. 928
| Court | Alabama Supreme Court |
| Writing for the Court | LAWSON; LIVINGSTON |
| Citation | 267 Ala. 621,103 So.2d 743 |
| Parties | Levie H. SHELLEY v. Charlie CLARK. |
| Decision Date | 22 May 1958 |
| Docket Number | 4 Div. 928 |
Page 743
v.
Charlie CLARK.
Rehearing Denied June 19, 1958.
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[267 Ala. 622]
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Grady G. Cleveland, Jr., Eufaula, for appellant.Archie I. Grubb and Sam A. LeMaistre, Eufaula, for appellee.
[267 Ala. 623] LAWSON, Justice.
Charlie Clark brought this suit in the circuit court of Barbour County against Levie H. Shelley, claiming $15,000 as damages for assault and battery.
There was jury verdict in favor of the plaintiff for $7,500. Judgment was duly entered in accord with the verdict. Shelley's motion for new trial being denied, he has appealed to this court.
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The appellant has assigned errors in the following manner. He alleges that: 'The Court erred in overruling the appellant's motion for a new trial and as grounds therefor sets down and assigns the following:' That statement is followed by fifteen 'grounds.' While this a very unusual and awkward method of assigning error, we will consider it as being sufficient to invite review of those 'grounds' which are well stated and which have been properly argued in brief of appellant. Grimes v. Jackson, 263 Ala. 22, 82 So.2d 315.
The third 'ground' reads: 'The Court erred in overruling appellant's objection to the introduction of hearsay evidence. (Transcript, Page 17)' Under the rule of our cases this assignment is perhaps too general. Spurlock v. J. T. Knight & Son, 246 Ala. 283, 20 So.2d 525; Almon v. Commission of Education, 265 Ala. 489, 92 So.2d 35, and cases cited. But in any event the ruling of the court of which appellant seems to be complaining was the overruling of an objection interposed after the witness had given an irresponsive answer to a question which was not objectionable. The proper procedure would have been to move to exclude the irresponsive answer. Ganey v. Henley, 260 Ala. 514, 71 So.2d 281; McBee v. McBee, 265 Ala. 414, 91 So.2d 675; Jones v. Lamb, 239 Ala. 225, 194 So. 652.
That which we are treating as the fourth assignment of error reads: 'The Court erred in sustaining the objection of the appellee to the question asked appellee to relate a conversation between appellee and the witness Marvin Edwards asked by the defendant for the purpose of impeaching the testimony of the appellee as a witness. (Transcript, Page 33)' A reading of page 33 of the transcript discloses that none of the testimony of the appellee, Clark, is set out on that page. Yet the assignment refers to the court's action in sustaining an objection to a question asked appellee. Moreover, this assignment is so indefinite and involved that it cannot be considered. Globe & Rutgers Fire Ins. Co. v. Jones, 213 Ala. 656, 106 So. 172; Western Steel Car & Foundry [267 Ala. 624] Co. v. Cunningham, 158 Ala. 369, 48 So. 109.
The evidence shows that the plaintiff and the defendant lived on adjoining lots in the city of Eufaula and that for serveral days prior to September 18, 1956, the defendant had been irritated with some of the actions of the plaintiff and of members of his family and had sworn out two warrants, one of which charged the plaintiff with disorderly conduct and the other charged him with creating a fire hazard. It is not clear from the evidence as to what was the basis of the disorderly conduct charge. Apparently the defendant took the position that too much noise was emanating from plaintiff's premises. These two warrants seem to have been sworn out on Monday, September 17, 1956. The fire hazard charge seems to have been based on the fact that on Saturday, September 15, the plaintiff after raking up his yard placed some leaves inside his garage, which was located only a few feet from the garage of the defendant.
The evidence for the plaintiff tends to show that at about 9:00 on Tuesday morning, September 18, 1956, while he was raking leaves in his yard the defendant called to him from his premises, saying among other things as follows: 'I want to tell you if you put another leaf in that garage I will kill you quick as a snake, and there won't be nothing dead but a mill hand * * * you won't go to jail next time, you will go to the cemetery.' To that remark the plaintiff replied: 'Brother, I didn't go to jail that time, and as far as the cemetery, one time is as good as another.' Following that remark the defendant went into his house and obtained his pistol. The plaintiff's testimony as to the events which followed is as follows: 'I had my back to him, and heard something behind me; the fact is I had my back turned that way, and I turned around and it was him coming through the hedge, and he had a pistol pointed right at me, and he didn't stop until he walked right up to me and stuck the pistol in my
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stomach, that close. (indicating) He said 'I asked you what you intended doing with those leaves, put them in the garage?' And he...To continue reading
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General Finance Corp. v. Bradwell, 1 Div. 242
...315; Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d 1346; Shelley v. Clark, [279 Ala. 440] Page 153 267 Ala. 621, 103 So.2d 743; State v. Goodwyn, 272 Ala. 618, 133 So.2d 375; Louisville & N.R. Co. v. State, 276 Ala. 99, 159 So.2d 458. However, grounds of......
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Southern Furniture Mfg. Co. v. Mobile County, 1 Div. 923
...650; Prestwood v. Bohannon, 27 Ala.App. 340, 172 So. 349; W. T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 22 So.2d 603; Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; State v. Ferguson, 269 Ala. 44, 110 So.2d 'An apt corollary to these rules must be that this court cannot review the inadequa......
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Peete v. Blackwell
...of aggravation." John R. Thompson & Co. v. Vildibill, 211 Ala. 199, 202, 100 So. 139, 141 (1924). See, e.g., Shelley v. Clark, 267 Ala. 621, 103 So.2d 743 (1958); 2 Harrison v. Mitchell, 391 So.2d 1038 (Ala.Civ.App.1980). In short, the longstanding rule of this jurisdiction requires that pa......
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Moving Picture Mach. Operators Local No. 236 v. Cayson, 6 Div. 109
...decree. But the record must contain some showing or statement of submission. Greer v. Heyer, 216 Ala. 229, 113 So. 14; Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; Holman v. Baker, 277 Ala. 310, 318, 169 So.2d 429, on rehearing, paragraph (10, The instant record contains no showing or sta......
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General Finance Corp. v. Bradwell, 1 Div. 242
...315; Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d 1346; Shelley v. Clark, [279 Ala. 440] Page 153 267 Ala. 621, 103 So.2d 743; State v. Goodwyn, 272 Ala. 618, 133 So.2d 375; Louisville & N.R. Co. v. State, 276 Ala. 99, 159 So.2d 458. However, grounds of......
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Southern Furniture Mfg. Co. v. Mobile County, 1 Div. 923
...650; Prestwood v. Bohannon, 27 Ala.App. 340, 172 So. 349; W. T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 22 So.2d 603; Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; State v. Ferguson, 269 Ala. 44, 110 So.2d 'An apt corollary to these rules must be that this court cannot review the inadequa......
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Peete v. Blackwell
...of aggravation." John R. Thompson & Co. v. Vildibill, 211 Ala. 199, 202, 100 So. 139, 141 (1924). See, e.g., Shelley v. Clark, 267 Ala. 621, 103 So.2d 743 (1958); 2 Harrison v. Mitchell, 391 So.2d 1038 (Ala.Civ.App.1980). In short, the longstanding rule of this jurisdiction requires that pa......
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Moving Picture Mach. Operators Local No. 236 v. Cayson, 6 Div. 109
...decree. But the record must contain some showing or statement of submission. Greer v. Heyer, 216 Ala. 229, 113 So. 14; Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; Holman v. Baker, 277 Ala. 310, 318, 169 So.2d 429, on rehearing, paragraph (10, The instant record contains no showing or sta......