City of Mobile v. Murphree , 96 Ala. 141 ( 1892 )

WALKER, J.

Tbe bill of exceptions does not sbow that any exception was reserved to the ruling of the court on the motion for a new trial. The order overruling the motion appears as a part of the record proper, and in that order it is recited that “defendant excepts.” Whether an exception to such a ruling, which appears only in the judgment-entry, is sufficient to present the ruling for review- by this court, is a question not necessary to be decided in this case. Eor, conceding that the exception is properly disclosed, yet the bill of exceptions does not purport to set out all the evidence, or all the tendencies of the evidence, or, in the language of the act authorizing appeals in civil cases from decisions granting or refusing to grant motions for new trials, “the substance of the evidence in the case.” — Acts of Ala. 1890-91, p. 779. It contains the testimony of several witnesses, and also states that a diagram of the scene of the casualty and certain photographs thereof were offered in evidence. Eor aught that appears, there may have been other material evidence before the jury. When a motion for a new trial is made upon the ground that the verdict is contrary to the evidence, or is not supported by sufficient evidence, it is plain that the action of the trial court on the motion can not be intelligently reviewed on appeal unless at least the substance of the evidence in the case is disclosed to the revising tribunal. In the absence of a showing of the premises upon which the decision of the trial court was predicated, it is impossible to determine whether its conclusion was right or wrong. Error will not be presumed, but must be affirmatively shown. The contrary not appearing, the presumption is to be indulged, in favor of the correctness of the ruling of the trial court, that the verdict was sup}3orted by sufficient evidence. This court can not pass upon the sufficiency of the evidence unless it is informed what the evidence was. No erroneous ruling of the court in the progress of the case was suggested in the motion as a ground for a new trial. A mere general assignment to the effect that the verdict was contrary to the law is insufficient, as it does not call the attention of the court to any specific erroneous action.— Cobb v. Malone, 92 Ala. 63.

The judgment was at first reversed here on a ruling of the* trial court in the admission of evidence. On an application for a rehearing, our attention was for the first time specifically called to the fact that the appeal is only from the order overruling the motion for a new trial. It is stated in the written argument in support of the application for a rehearing that the limited scope of the appeal was called to the attention of the court in one of the briefs originally filed for the appellee. The brief referred to has never come to the hands of the court. In the printed brief filed by one of the counsel for the appellee, which was the only brief in her behalf that came to the hands of the court until the application for a rehearing was made, there was no mention of the point that the appeal was only from the order overruling the motion for a new trial. Errors had been assigned upon rulings on the trial which were not suggested in the motion as a ground for a new trial. There was a joinde in the errors so assigned. In these circumstances, the court made no examination of the citation or of the certificate of appeal, as any irregularities therein were waived by the joinder in error. — 3 Brick. Digest, p. 41, §§ 139, 140. The lull of exceptions was so framed as to present for review, on appeal from the main judgment in the case, rulings which were excepted to in the progress of the trial, but were not specified in the motion for a new trial.

The plaintiff in the cause was cited to defend against “an appeal from the said order overruling the motion for a new trial.” The certificate of appeal recites that “in the above entitled cause, a judgment was rendered by the said Circuit Court for Mobile county, Alabama, in favor of Mary J. Murphree and against the City of Mobile, on the 15th day of June, A. D. 1891, overruling defendant’s motion for a new trial, and that on the 5th day of October, A. D. 1891, the City of Mobile, a body corporate, by Jos. C. Bich, mayor, applied for and took an appeal from said judgment and gave security for the costs of the appeal,” &c. It thus plainly appears that the appeal xmdertakes to present for review only the ruling of the court on the motion for a new trial. It is a question whether the appeal should not be from the main judgment in the cause, even when the action on a motion for a new trial is the only matter to be assigned as error. Acts of Ala. 1890-91, p. 779. However that may be, the court is of the opinion that the scope of the appeal as actually taken and fully disclosed by the record is not enlarged by the appellee’s joinder in an assignment of errors, some of which are not presented for review by the appeal; and that only the action of the trial court in reference to the judgment or order appealed from can properly be considered by this court.

In tbe motion for a new trial no alleged erroneous ruling of tbe court in tbe admission of evidence was specified, so as to call tbe attention of tbe court to it. Tbe action of tbe court on.a motion for a new trial will not be reversed on appeal on a ground wbicb was not mentioned in tbe motion.

Tbe conclusion reached upon a re-examination of tbe case is, that tbe ruling upon wbicb tbe judgment was at first reversed by tbis court is not properly presented on tbis appeal. Tbe rebearing bas been granted, and tbe opinion heretofore rendered is withdrawn, and this opinion substituted in its place. Tbe result is that tbe judgment appealed from must be affirmed.

Affirmed.