Stewart v. Guy

• Decision Date: 30 June 1903
• Citation: 138 Ala. 176,34 So. 1007
• Parties: STEWART v. GUY.
• Court: Alabama Supreme Court

34 So. 1007

138 Ala. 176

STEWART v. GUY.

Supreme Court of Alabama

June 30, 1903

Appeal from Circuit Court, Clarke County; John C. Anderson, Judge.

Action by J. C. Stewart against E. J. Guy. From a judgment for defendant, plaintiff appeals. Affirmed.

This was a statutory action of detinue, brought by the appellant, J. C. Stewart, against the appellee, E. J. Guy, to recover the possession of a horse. There was a verdict and judgment for the defendant, whereupon the plaintiff moved the court to grant him a new trial upon the following grounds: First, because the verdict was contrary to the evidence; second, because the verdict is contrary to the law; third, because the verdict is contrary to the law and the evidence. The fourth ground on motion for new trial was that the court had erred in giving a charge to the jury ex mero motu. The ruling of the court upon motion for new trial is the only question presented for review on the present appeal.

John S. Graham and W. D. Dunn, for appellant.

Lackland & Wilson, for appellee.

DOWDELL, J.

The overruling of a motion for a new trial is the only matter assigned as error in the record. The bill of exceptions does not purport to set out all of the evidence had in the original trial, and in this state of the record it is impossible for this court to say whether the weight of the evidence was against or in favor of the verdict. The judgment of the court, therefore, on the motion relating to the evidence and verdict will not be disturbed. To the charge given ex mero motu by the court it does not appear that any exception was reserved on the trial. The failure to reserve an exception to the charge of the court on the trial cannot be cured by a motion for a new trial. Tobias v. Triest, 103 Ala. 664, 15 So. 914.

We find no reversible error in the record, and the judgment will be affirmed.