Stokes v. Hinton

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 289
• Parties: STOKES v. HINTON.
• Court: Alabama Supreme Court

72 So. 503

197 Ala. 230

STOKES v. HINTON.

6 Div. 289

Supreme Court of Alabama

June 30, 1916

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Action by W.C. Hinton against J.T. Stokes. A judgment for defendant was set aside, and a new trial granted, from which order defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Act April 18, 1911. Affirmed.

The suit began in the justice court, where there was judgment for plaintiff, and defendant brought an appeal, and upon the trial in the city court certain evidence as to the date when the house was standing and the timbers thereof had not been removed was offered by defendant contrary to and in addition to evidence offered by him in the justice trial, and this fact is made a basis by plaintiff for the motion for new trial, based on surprise, and on the further fact that had he known that such evidence would be offered, he was not then apprised of the fact that it could have been disproven by three disinterested witnesses, which fact has come to his knowledge since such trial. After hearing the evidence the court entered the following judgment:

"Judgment in this cause having been rendered in favor of defendant, and the plaintiff having on *** filed in this court his motion for new trial, and the same having been duly spread upon the motion docket of this court and said cause now on this *** coming on for hearing upon said motion for new trial, and the court having now duly considered said motion, and the affidavits filed in connection therewith and evidence thereon, *** it is the opinion of the court that said motion is well taken and should be granted. It is therefore the order and the judgment of the court that plaintiff's said motion to set aside the verdict and in arrest of judgment, and to set the judgment aside, and to grant him a new trial in this cause, be and the same is hereby granted; and it is further the order and the judgment of the court that said verdict be set aside, and also the said judgment be set aside and this cause be restored to the docket for a new trial."

This judgment appears of record and not as a part of the bill of exceptions.

W.J Monette, of Tuscaloosa, for appellant.

Brown &amp Ward, of Tuscaloosa, for appellee.

THOMAS J.

The appeal is taken from a judgment granting a new trial rendered on April 16, 1915. The amended statute, therefore has no application to this appeal. Gen.Acts 1915, p. 722.

The rule declared by this court for presenting for review the judgment of the trial court granting or refusing a motion for a new trial is as follows: (1) Where the motion is overruled no right is disturbed and no formal judgment on the motion is necessary. In such case, the ruling of the court denying the motion must be shown by the bill of exceptions, together with the fact that exception was reserved thereto. The original judgment, however, must appear as a part of the record proper. So. Ry. Co. v. Nelson, 148 Ala. 88, 41 So. 1006; Turner v. Spragins, 172 Ala. 98, 55 So. 118. (2) Where the motion is granted and the status of the original judgment is disturbed, a formal judgment...