Southern Ry. Co. v. Dickens

• Decision Date: 14 February 1907
• Citation: 43 So. 121,149 Ala. 651
• Parties: SOUTHERN RY. CO. v. DICKENS.
• Court: Alabama Supreme Court

43 So. 121

149 Ala. 651

SOUTHERN RY. CO. v. DICKENS.

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Charles C. Dickens against the Southern Railway Company.From an order granting plaintiff a new trial, defendant appeals.Affirmed.

Bestor & Gray, for appellant.

Gregory L. & H. T. Smith and Francis J. Inge, for appellee.

HARALSON J.

This action was before a justice of the peace to recover damages for the killing of a bull belonging to the plaintiff, Charles C. Dickens, by the defendant, the Southern Railway Company.It becomes necessary to state the facts.

The animal was killed on the 17th of December, 1902, and the trial was had before the justice, on the 31st of December 1903.There was a judgment for the plaintiff, and the case was carried by certiorari to the circuit court, and a trial was there had on the 24th of January, 1906.The record shows that the defendant filed a plea of the statute of limitations of one year, on the day of the trial.The affirmative charge was given for defendant, and judgment was rendered accordingly, evidently on the plea.The plaintiff made a motion for a new trial, on account of mistake and surprise which was granted.The appeal is from the order setting aside the judgment and granting a new trial.The grounds for the motion, as stated therein were, "Because at the time of the trial neither he(the plaintiff) nor his attorney knew that there was a plea of the statute of limitations filed in said cause, and because the plaintiff was thereby taken by surprise, and was not prepared to contest said plea of the statute of limitations, and because said suit was filed with H. P. Lewis, a justice of the peace, on or about October 1st 1903(less than a year after the animal was killed) and summons was issued by said justice and made returnable October 10th, 1903, which summons was served on the Southern Railway Company, within the time; that prior to the 10th of October, 1903, the said justice resigned; that afterwards one Anderson was appointed to succeed the said Lewis, and after his appointment [he] issued a new summons, dated December 19th, 1903, instead of proceeding under the summons issued by the said Lewis, all of which was unknown to the plaintiff, and because the justice, Anderson, did not certify all of the papers to the said circuit court whereby the plaintiff was misled."The said Dickens testified, and there is no evidence to the contrary, that he did not know that said summons had been issued until he learned that fact on the trial, after all the evidence had been introduced and the general charge had been asked by defendant.

At the trial of this cause, the plaintiff stated his case to the jury, and in reply, the defendant's counsel stated that the defendant pleaded not guilty, and made no further statement.The fact that he had, on that day, filed the plea of the statute of limitations, was not stated as one of the grounds of defense to the action; and as stated. in the motion for a new trial, neither the plaintiff nor his attorneys, at the time of the trial, knew that there was such a plea in the case.After the trial was over, the plaintiff made an investigation of the matter, and discovered the true state of facts, and, thereupon, made a motion for a new trial.

The evidence introduced on the trial of the motion, sustained the principal facts stated in the...