Southern Ry. Co. v. Bailey
| Decision Date | 14 January 1932 |
| Docket Number | 2 Div. 969. |
| Citation | 140 So. 408,224 Ala. 456 |
| Parties | SOUTHERN RY. CO. v. BAILEY. |
| Court | Alabama Supreme Court |
Rehearing Denied March 31, 1932.
Appeal from Circuit Court, Hale County; Benj. F. Elmore, Judge.
Action by Hermine P. Bailey against the Southern Railway Company and another. From a judgment for plaintiff, the named defendant appeals.
Affirmed.
See also 220 Ala. 385, 125 So. 403.
Evins & Jack, of Greensboro, and Pettus & Fuller, of Selma, for appellant.
Harsh & Harsh, of Birmingham, and S. F. Hobbs, of Selma, for appellee.
Apppellant again invites a ruling on the application for removal of the cause to the federal court on the ground of diverse citizenship. This application was made on a former trial, and the ruling thereon by the trial court reviewed on former appeal.
Since the matter goes to the jurisdiction of the trial court, it may properly be reconsidered at any stage of the proceedings.
We reaffirm our holding on former appeal. It affirmatively appearing that the plaintiff was a resident of this state when suit brought, and that the alleged diverse citizenship had arisen by her removal to another state pending the suit the application disclosed no ground for removal. See former decision 220 Ala. 386 (1), 125 So. 403, and authorities there cited.
That the trial court overruled demurrer to the application and heard proof on the question of actual change of residence to another state is unimportant.
True, the truth vel non of the allegations of a petition in due form setting forth good grounds for removal is triable only in the federal court. But where, as here, the application disclosed no ground for removal, the error of the court in holding it good, and hearing the issue of fact, was harmless. The result was to retain jurisdiction just as the law demanded.
Charge 10 was refused to defendant without error for that it singles out and gives prominence to parts of the evidence.
The oral charge was full and accurate in its instructions to the jury as to the weight to be given the evidence. It directed the jury to consider the testimony in the light of experience and common sense. That this was in fact applied to the controverted evidence of value is indicated by the finding of the jury disagreeing with the opinion evidence on either side on that issue.
Defendant's charges 5 and 1-B were refused without error upon grounds fully discussed in former opinion...
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Bessemer Bd. of Educ. v. Tucker
...point in the litigation, even after a previous appeal. We have found authority to support that proposition. In Southern Railway Co. v. Bailey, 224 Ala. 456, 140 So. 408 (1932), the railway company invited our supreme court to address whether the action should be removed to federal court, a ......