Sorsby v. Wilkerson

• Decision Date: 16 June 1921
• Docket Number: 6 Div. 397
• Citation: 206 Ala. 190,89 So. 657
• Parties: SORSBY v. WILKERSON et al.
• Court: Alabama Supreme Court

89 So. 657

206 Ala. 190

SORSBY v. WILKERSON et al.

6 Div. 397

Supreme Court of Alabama

June 16, 1921

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by I.K. Sorsby against Hattie C. Wilkerson and others, for damages to trespass to land and the conversion of certain lumber. Judgment for defendants, and plaintiff appeals. Affirmed.

Miller & Graham, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, and Black & Harris, of Birmingham, for appellees.

MILLER J.

The judgment was rendered in this case on October 29, 1919. The bill of exceptions was presented to the trial judge February 16, 1920. This was more than 90 days after the judgment. It was signed and approved May 15, 1920, within 90 days after presentation. Judgment on motion for new trial was rendered January 16, 1920. This bill of exceptions can be looked to and considered only to review matters raised by the motion for new trial, and the errors assigned thereon. Sections 3019, 3020, Code 1907; Shipp v. Shelton, 193 Ala 658, 69 So. 102; Cassells' Mill v. Strater Bros., 166 Ala. 274, 51 So. 969.

Within 30 days after the judgment was rendered on October 29, 1919 to wit, November 21, 1919, a motion for new trial was filed by the plaintiff on the following grounds:

"(1) The verdict is contrary to the evidence. (2) The verdict is contrary to the weight of the evidence. (3) The verdict is contrary to the great preponderance of the evidence. (4) The court erred in its rulings respecting the admissions of evidence upon the trial of this cause in the following particulars, viz."

--and was then signed by the attorneys.

On November 21, 1919, this motion was continued by the court to December 13, 1919.

On December 13, 1919, more than 30 days after the judgment was rendered, and when the motion was called in court, the plaintiff presented an amendment in writing to the original motion for new trial, adding at the end of ground 4, after the word "viz." eight separate and special grounds for the new trial based on rulings of the court adverse to the plaintiff, in the admission or rejection of evidence. These grounds or specifications were lettered from A to H both inclusive. The defendant objected to the allowance of the amendment to the motion by filing the eight additional grounds, and assigned ten different objections. The court overruled these objections and allowed the amendments. These additional grounds should not have been allowed by the court, and they will not be considered by this court. The allowance of amendments to a motion for new trial, stating new and different grounds from the original, after the expiration of the 30 days from date of judgment, should not be allowed by the court, and will not be considered by this court. Ferrell v. Ross, 200 Ala. 90, 75 So. 466.

The three original grounds of the motion for new trial will be considered and reviewed by this court in this case. The plaintiff sues to recover for the conversion by the defendants of lumber from a building on lot 22, block 452, in the city of Bessemer. The plaintiff claims title to the lot and building and lumber through two mortgages on the property, given by John W. Cash and Hattie E. Cash to the King Lumber Company, and transferred by the King Lumber Company to plaintiff. One mortgage was to secure $500, and the other secured $285.50. The $500 mortgage is dated June 19, 1905. The mortgages were foreclosed by plaintiff May 1 1916, and the property purchased by her (plaintiff). S.P. King did business under the name of King Lumber Company, and sold lumber. He is a brother of plaintiff, and her agent. The evidence for plaintiff was that both of said mortgages were given for borrowed money; that neither were paid; that no interest and none of the principal had ever been collected; that no demand for principal or interest was made on the mortgagees until just before the foreclosure--10 years after they were given; that plaintiff received the mortgages by transfer from her brother before maturity, by paying...