Shipp v. Shelton

• Decision Date: 03 June 1915
• Docket Number: 816
• Citation: 69 So. 102,193 Ala. 658
• Parties: SHIPP et al. v. SHELTON.
• Court: Alabama Supreme Court

69 So. 102

193 Ala. 658

SHIPP et al. v. SHELTON.

No. 816

Supreme Court of Alabama

June 3, 1915

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Action by John B. Shelton against Thomas R. Shipp, as Sheriff, and his sureties on his official bond, for trespass. There was a judgment for plaintiff, and defendants appealed to the Court of Appeals, and it transferred the case, under Act April 18 1911 (Laws 1911, p. 450) § 6, to the Supreme Court. Motion to dismiss appeal overruled, and judgment reversed and remanded.

The trespass grew out of the levy of an execution in favor of the Van Vleet-Mansfield Drug Company against P.C. Gaston on personal property belonging to plaintiff, consisting of articles described. It appears from the pleadings that plaintiff bought the stock of goods from P.C. Gaston, and that said Gaston had claimed the same as exempt at the time he filed the petition in the District Court of the United States to be adjudged a bankrupt. The further facts appear in the opinion.

Wert &amp Lynne, of Decatur, for appellant.

W.T Lowe and Tennis Tidwell, both of New Decatur, for appellee.

THOMAS J.

This is an appeal from the judgment of the circuit court of Morgan county, rendered on the 28th day of October, 1912. The bill of exceptions was presented on January 2, 1914, to the judge who presided at the trial of the cause, and by him signed on April 1, 1914, and the appeal was taken on the 1st day of May, 1914. The cause was submitted on the motion to strike the bill of exceptions on the ground that the bill was not presented to the trial judge within 90 days from the day on which the judgment was entered in the cause (Code 1907, §§ 3019, 3020), and on the motion to strike the assignment of errors on the ground that the appeal was taken more than 12 months after the rendition of the judgment, and on the merits.

The record shows that a motion for a new trial was filed on the 4th day of November, 1912, and was passed for hearing to December 23, 1912. On January 3, 1913, the motion was "submitted for decision in vacation, judgment to be rendered of this date," and no action was taken by the court on the motion before the adjournment of the term of the court, and no formal order of continuance to the next term was made. The next term--the spring term--of this court began on April 14, 1913, and continued in session until October 11 1913. On May 23, 1913, an order was made in the cause in the following words:

"Come the parties by their attorneys,

and the motion for new trial in this cause not having been passed on, upon agreement of parties it is hereby ordered and adjudged that the hearing on said motion for a new trial be, and the same is hereby, continued."

And on October 7, 1913, the cause was again submitted for decision on the motion for a new trial, and the new trial was on that day denied.

What, then, was the effect of the final adjournment of the circuit court of Morgan county, without making an order of continuance of the motion to the spring term of the circuit court, that convened on April 14, 1913? What effect had the continuance by consent on May 23, 1913, and the resubmission for decision of the motion on October 7, 1913, and its refusal on that day?

Ordinarily, an order of continuance is necessary to keep a motion for a new trial alive when not acted on at the term at which the motion is made. This does not apply to an adjourned term, which is deemed a part of the regular term. Sou. Ry. Co. v. Jones, 143 Ala. 328, 39 So. 118; Ashford v. McKee, 183 Ala. 620, 62 So. 879; Agee & Co. v. Clark, 6 Ala.App. 130, 60 So. 460; Hundley v. Yonge, 69 Ala. 89.

The general order of continuance of all causes and motions not otherwise disposed of does not keep the motion alive, and the court was without power at the subsequent term to entertain it against the objection of plaintiff, Sou. Ry. Co. v. Jones, supra; Ex parte Highland Ave. & B.R.R. Co., 105 Ala. 221, 17 So. 182; Hundley v. Yonge, supra.

In the instant case the plaintiff in the court below did not object to a continuance and then to a resubmission of the motion to the court, but of date May 23, 1913, consented that the motion be continued to the next term, and on October 7, 1913, consented that the motion be submitted to the court for decision.

When a motion for a new trial is heard and determined on its merits, without objection or claim that the court is without authority to hear the same because the record fails to show an order continuing the motion, the discontinuance is waived, and the objection cannot be insisted upon for the first time in this court; this according to many decisions of this court. B.R., L. & P. Co. v. Hinton, 146 Ala. 273, 40 So. 988; Ala. S. & W. Co. v. Sells et al., 168 Ala. 547, 52 So. 921; McCarver v. Doe ex dem. Herzberg, 135 Ala. 542, 33 So. 486; McConnell v. Worns, 102 Ala. 587, 14 So. 849; Kennedy v. Pickering, Minor, 137; 7 Mayfield's Digest, 645.

Motion for a new trial, seasonably made, suspends the judgment. The judgment does not become final for the purpose of an appeal until the motion is disposed of; and the time within which an appeal from a judgment, after the rendition of which a motion for a new trial has been seasonably made, may be taken, must be considered to begin to run from the date whereon the trial court rules on the motion for a new trial. The new trial being denied on October 7, 1913, the appeal was taken within the time prescribed by the statute. Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829; Barron v. Barron, 122 Ala. 194, 25 So. 55; Hamilton v. Kitchens, 148 Ala. 385, 41 So. 871.

The bill of exceptions was presented to the judge presiding at the trial of the cause within 90 days from the day on which the judgment was entered on the motion for a new trial.

The questions presented as grounds for the new trial are now presented by the bill of exceptions, and the motion to strike the bill of exceptions in so far as it pertains to the motion for a new trial or the assignments of error thereon is overruled. Cassell's Mills et al. v. Strater Bros. Grain Co., 166 Ala. 274, 281, 51 So. 969; Cobb v. Owen, 150 Ala. 410, 43 So. 826; McCarver v. Herzberg, supra; Bank v. Wilks, 132 Ala. 573, 31 So. 451; Ala. Mid. Co. v. Brown, 129 Ala. 282, 29 So. 548.

By agreement of parties the statement of facts in the motion was a true and correct statement of the "matters and things therein set forth," and they "occurred in the manner and at the time therein stated." It was therefore not necessary to offer other evidence in support of the motion. Tobias & Co. v. Treist & Co., 103 Ala. 664, 670, 15 So. 914; Thomas Bros. v. Williams, 170 Ala. 522, 54 So. 494; Moneagle & Co. et al. v. Livingston, 150 Ala. 562, 43 So. 840. The appeal was from the decision of the court overruling the motion for a new trial. Code 1907, § 2846; Henry v. Couch, 132 Ala. 570, 31 So. 463; Cobb v. Malone, 92 Ala. 630, 9 So. 738.

On the trial the court gave to the jury, at the written request of the plaintiff, the charge: "If you believe the evidence, you will find for the plaintiff." The jury, after the submission of the cause to them and deliberation thereon, returned a verdict for defendant. Thereupon the court told the jury that the verdict was contrary to the instructions of the court, and required the jury to "again retire to the jury room and bring in a verdict for the plaintiff," to which action of the court the defendant excepted before the jury retired. After the jury had retired under this instruction of the court they again came into court, and one of the jurors asked the court if his charge meant that they must "find for the plaintiff" even though they did not "believe the evidence." The court replied: "You must believe some of the evidence." The juror then inquired: "Must we find for the plaintiff even though we do not believe a part of the evidence?" to which the court replied: "Yes; you must find for the plaintiff if you believe any part of the evidence." This instruction was duly excepted to by the defendant before the jury retired, and it was urged as error in his motion for a new trial, and is now assigned as error.

In John v. B.R. Co. et al., 172 Ala. 603, 55 So. 801, the rule is stated that, where there is any evidence or reasonable inference to be drawn making a conflict as to a material issue, the affirmative charge should not be given. In Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482, 516, 52 So. 86, 98, Mr. Justice Mayfield declared:

"If there is any evidence tending to prove a fact, no matter how slight, the court has no right to take such question from the consideration of the jury. *** It is likewise the exclusive province of the jury to determine the facts under proper instructions from the court. *** If there be any evidence which tends to establish the plaintiff's cause, it is error for the court to withdraw the case from the jury or to direct a verdict, because it is not for the court to judge of the sufficiency of the evidence."

In Crutcher v. M. & C.R. Co., 38 Ala. 579, 584, Chief Justice Walker declared:

"The bill of exceptions informs us that after the retirement of the jury they were recalled by order of the court, and that thereupon the court 'repeated the charge to the jury it had first given, accompanying the charge with the intimation that their further deliberations must result in a verdict for the defendant, else they would subject themselves to the consequences of a contempt of court.' The charge which the court first gave was that, if the jury believed the evidence, they must find for the defendant. This was, therefore, the charge which was repeated to the jury, in connection with the menace of punishment,

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