Woodward Iron Co. v. Brown

• Decision Date: 16 June 1910
• Parties: WOODWARD IRON CO. v. BROWN.
• Court: Alabama Supreme Court

52 So. 829

167 Ala. 316

WOODWARD IRON CO. v. BROWN.

Supreme Court of Alabama

June 16, 1910

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Walter Brown against the Woodward Iron Company. There was an order granting a new trial after judgment for defendant and it appeals. Affirmed.

The following are the charges referred to in the opinion "(A) If the jury believe from the evidence that the cause of the derailment of the first car was a collision between that car and another car following it, and that all of plaintiff's injuries were proximately caused by the second car, and that the second car got loose and ran down on plaintiff as a result of the negligence of Lonnie Chamblee they must find for the defendant. (B) If the jury believe the evidence, they cannot find for the plaintiff under the fifth count of the complaint. (C) If the jury believe from the evidence that the condition of the track in said heading at the place of the accident, which caused the wreck of the first tram car, was not such that the plaintiff was likely to suffer injury, or said condition of track was such that a reasonably prudent man would not have been called upon to put the track in a better state of repair, because of the fact that it was apparently in good condition, you must find for the defendant under the second count."

Chas A. Calhoun and Cabaniss & Bowie, for appellant.

V. L. Allen and James M. Hanby, for appellee.

SIMPSON J.

The appellee makes a motion to dismiss this appeal, on the ground that it is not taken within the time prescribed by law. In the original case of Walter Brown v. Woodward Iron Company a verdict was rendered for the defendant on March 9, 1909; on a subsequent day of the term a motion was filed to "set aside the verdict and judgment" and to grant a new trial. This motion was regularly continued until June 12, 1909, when the verdict of the jury was set aside and a new trial was granted; and it is from this judgment that the appeal is taken.

The contention of the appellee is that, under section 4145 of the Code of 1907, this appeal should have been taken "within thirty days from the rendition of the judgment or order," and the appeal, as a matter of fact, was not taken until November 22, 1909. Said section is a part of article 7 of chapter 85 of the Code, the title of the chapter being "Executions and Judgments," and the title of the article, "Satisfying, Annulling, or Setting Aside of Judgments."

Section 4141 relates to "motion to enter satisfaction of judgment or decree"; section 4142, to "motion to set aside judgment or decree, or to set aside entry of satisfaction"; section 4143 provides that "no judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contained a substantial cause of action"; section 4144 provides that if the motion is not contested the costs shall be adjudged against the applicant, and if contested, against the unsuccessful party; and section 4145 provides that a bill of exceptions may be taken and an appeal must be in 30 days. It is evident that these sections do not refer to the ordinary motion for a new trial, but to motions which may be made for setting aside judgments, for irregularities, imperfections, etc. This is made more evident by the fact that section 4142 provides that notice of the motion must be served on the adverse party for 10 days, if he is within the state, or by advertisement for 3 weeks, if the party be out of the state, while notice of 1 day is sufficient on a motion for a new trial. Rule 22, p. 1522, Code.

Common-law courts have inherent power to grant new trial, and at common law the judgment was not rendered until the motion for new trial was disposed of (29 Cyc. 722, 727), but the usage in our courts and others is to enter the judgment when the verdict is returned, and the party has during the term of the court to make the motion for a new trial. The effect of the motion is to suspend the judgment until the motion is disposed of, and if it is granted, it "wipes out the verdict; no judgment can be rendered on it." Hilliard on New Trials, p. 59. Hence our courts hold that the judgment, having been suspended, does not become effective for appeal until the motion for a new trial is disposed of (Florence C. & I. Co. v. Field, 104 Ala. 471, 16 So. 538; Barron v. Barron, 122 Ala. 194, 25 So. 55; State ex rel. Hamilton v. Kitchens, 148 Ala. 385, 41 So. 871), but that, when the new trial is granted, only such errors as affect the granting of the motion can be considered. Karter v. Peck & Bro., 121 Ala. 636, 25 So. 1012; Chambers v. Morris, 144 Ala. 626, 39 So. 375. This necessarily follows, for if the verdict and judgment on it are wiped out there is no judgment in the case to appeal from, and the judgment on the motion for a new trial becomes the final action of the court in the case. This appeal is governed by the statute in regard to appeals from final judgments. Section 2868 of the Code, as amended by Acts 1909, Sp. Sess. p. 165, also provides that all appeals under that chapter, except where a different rule is prescribed, must be taken within 12 months. The motion to dismiss the appeal is overruled. The application for a new trial was based entirely on the rulings of the court, which are claimed to be erroneous. If either of said charges was erroneous, the court cannot be placed in error for granting the new trial, but, if neither was erroneous, the new trial should not have been granted.

All of the counts of the complaint allege that the plaintiff was an employé of Smith Tally, or of Tally & Shores, independent contractors. The first, second, and third counts rest upon the breach of duty on the part of the defendant to provide a safe place for defendant to work, the defects claimed being...