Wiggins v. Witherington

• Decision Date: 01 November 1892
• Citation: 96 Ala. 535,11 So. 539
• Parties: WIGGINS v. WITHERINGTON ET AL.
• Court: Alabama Supreme Court

11 So. 539

96 Ala. 535

WIGGINS v. WITHERINGTON ET AL.

Supreme Court of Alabama

November 1, 1892

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Action of detinue by Witherington & Co. against John A. Wiggins. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. M. Whitehead, for appellant.

Stallworth & Burnett, for appellees.

THORINGTON, J.

The record contains two motions, made by appellant after verdict in the court below. One is a motion to amend the judgment entry nunc pro tunc, and the other in a motion in arrest of judgment. The only errors assigned are based on the refusal of the court to grant these two motions. Neither motion is set out in the bill of exceptions. They are copied in the transcript as part of the record, but it has frequently been held that the insertion of such motions by the clerk in the transcript does not make them part of the record. They must be expressly made such by a bill of exceptions. The bill of exceptions does not show that any action was taken by the circuit court on the motion in arrest of judgment, or, if action was taken, that appellant excepted thereto. It does appear from the bill of exceptions that the court denied the motion to amend nunc pro tunc, but, inasmuch as the motion is not set out in the bill of exceptions, this court cannot know what it was, or whether the court ruled correctly thereon; it is not before us. Baker v. Swift, 87 Ala. 530, 6 South. Rep. 153. We have examined the judgment entry in connection with the verdict of the jury, and find no substantial variance between them that would authorize a reversal of the case. The verdict, reasonably interpreted, is a finding for the plaintiff not only for the ox "Buck," but for all the property designated by the jury. Although informal, the verdict was sufficient to authorize a judgment thereon; and, as stated above, there is no substantial variance between the judgment and the verdict. It is not made to appear that any error occurred in the proceedings of the circuit court of which appellant can complain, and its judgment denying the motion to amend nunc pro tunc is accordingly affirmed.