Florence Cotton & Iron Co. v. Field , 104 Ala. 471 ( 1894 )

HARALSON. J. —

1. The record shows the judgment in this case was rendered on the 15th of January, 1892, and the appeal was taken on the 12th of April, 1893— more than twelve months after the date of the rendition. On the 23d of January, 1892, the defendant filed a written motion for a new trial in the cause, for the reasons therein stated, which motion, continued from time to time, was not acted on, until 21 April, 1892, when it was overruled, before the adjournment of the term. It is provided by statute for appeals from judgments in cases of this kind, that they “must be taken within one year from the rendition of the judgment or decree.” — Code, § 3619. Based on this statute, the appellee moves the court to strike out all the assignments of error found in the record in this cause, numbered from 1 to 29, both inclusive, relative to alleged errors committed by the court, on the trial thereof, upon the ground, that the judgment was rendered more than twelve months before the appeal was taken. In response to this motion, the appellant insists, that the motion for a new trial suspended the judgment, and it did not become final, for the purposes of an appeal, until the motion was overruled by the court below.

2. The general rule as stated by the text writers is, that “a pending motion for a new trial, seasonably filed, keeps the cause in the trial court, and, so long as it remains undisposed of, there can be no final judgment, within the meaning of the statutes regulating appeals.”— 2 Thompson on Trials, § 2730; Hilliard on New Trials, 59 ; 16 Am.& Eng. Enc. of Law, 638, § 7. In Walker v. Hale, 16 Ala. 27, it was said, that “a court can not grant a new trial, after the term is closed, at which the cause was tried, unless a motion during the term be made, and for cause continued until the next term ; but if the motion is made, the legal effect of it is to retain the matter, for that purpose, under the control of the court. The cause is said to be in fieri by reason of the motion ; and the court may make any order afterwards that may be proper.” — Pratt v. Keils, 28 Ala. 396.

Appeals and writs of error may be prosecuted or sued out in the federal courts within two years from the rendition of the judgment or decree (Rev. Stat., § 1008) ; and in this State, as we have seen, an appeal must be taken within one year from the rendition of the judgment or decree. The time for prosecuting an appeal in the federal courts, on a ruling of a court on a motion for a new trial in a cause, is not regulated by statute, nor have appeals from such rulings of the courts in this State been made a matter of statutory regulation. The rule as laid down by the Supreme Court of the United States on the question is, “that if a motion or a petition for a rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then, the judgment or decree does not take final effect for the purposes of the writ of error or appeal.” — Aspen M. & S. Co. v. Billings, 150 U. S. 36 ; Brackett v. Brackett, 2 How. 238 — 9 ; Texas P. R. Co. v. Murphy, 111 U. S. 488 ; Memphis v. Brown, 94 U. S. 715.

In this case, the motion for a new trial was made at the same term at which the judgment was rendered, and within a few days thereafter was entertained by the court, and, after orders of continuance, was overruled at a subsequent day of the term. The appeal is not from the order overruling the motion for a new trial; but it is from the judgment alone, as is manifested by the security for the costs, the citation, and certificate of appeal. We are constrained to hold, on reason and authority, that for the purposes of the appeal, the judgment did not become final until the 21st day of April, 1892, — the date of the judgment of the court, overruling a motion for a new trial — and that the cause is properly here on appeal. The motion to strike from the record the assignments of error in the rulings of the court on the trial of the cause is overruled.

3. The plaintiff, on his cross-examination, was asked by the defendant: "Did the supervision at Florence require much of your time?” An objection to this question by the plaintiff was sustained. The defendant seeks to justify its asking on the ground, that the complaint contains a count for work and labor done by plaintiff for defendant, during the year 1889. But this count was was introduced by way of precaution. The count on which the case was tried was on a contract, made and entered into by and between the plaintiff and defendant on the 11th January, 1889, by which defendant agreed to pay plaintiff $5,000 per annum for his services as Vice-president and general manager of the defendant company. The plaintiff had testified to his contract and to facts tending to show its breach by defendant, but had not testified to any facts tending to support the common counts, and under his own evidence he was entitled to recover on the contract, or not at all. It was to no purpose, therefore, to go into the question of how much orliow little of his time he devoted to defendant’s bush' ness. If the question was not objectionable on other grounds, it was irrelevant to the issue presented and maintained by plaintiff, and there was no error in not allowing it to be answered.

4. The defendant, in its 2d plea sets up that, “On account of the organization of this defendant company, defendant avers that after its organization on the 11th day of January, 1889, the officers thereof, including the plaintiff íd this suit as general manager of ' this defendant, made efforts to sell or place 3,000 shares of the capital stock thereof, and after failing to do so elsewhere, ■finally offered to Jas. Pollock, Adolph Woll, Thos. D. Stinson and Robert Dornan the said sale or placing of said 3,000 shares of its capital stock, and that as an inducement and consideration for said persons buying and placing said stock, said plaintiff, who was the vice-president and general manager of this defendant, did, on or ahout 24th October, 1889, release to this defendant all his right to or compensation for salary as an officer of said company, for any services previously rendered by him as such, or thereafter to be rendered. And defendant avers, that plaintiff rendered no services after said time as an officer of this defendant; and the said Dornan, Pollock, Stinson and Woll, on the faith and in consideration of said release, did buy and place 3,000 shares of stock aforesaid in the defendant company.” The 3d plea sets up in substance the same defense.

There is no denial of the fact, that the plaintiff was elected the vice-president and general manager of the defendant company, on or about the 11 January, 1889, at an annual salary of $5,000 ; and the whole defense is, that for a valid consideration, as set up in said 2d plea, the plaintiff did, on or about the 24th of October, 1889, release all his claim for salary as an officer of the company, for services theretofore, or to be thereafter, rendered. In order to prove the averments of this plea, the defendant filed interrogatories to W. A. Hudson, who was the president of the defendant company, and also to. Pollock, Stinson, Woll and Dornan. On the cross-examination of these witnesses, each was asked many very impertinent and irrelevant questions, to undertake to point out which, on objections raised by defendant, would consume much time and labor, and swell the re;port-of .this case .to an undue and useless length. Eor the guidance of the court on another trial, it may be stated generally, that what price these parties paid for their stock, and how much they now owe thereon; to whom they made the payment; how much was paid to Hudson for making the sale, if anything ; whether the purchasers agreed to assume and pay the debts and liabilities of the defendant, or not; what those debts were, and if they have been paid ; what bonus said purchasers received for placing the stock;.and the answers for the most part, to, questions included in what is called the “addenda to cross-infcerrogafcóries to W. A. Hudson,” are irrelevant evidence to the real issue in the cause. The exceptions to this evidence are quite general, the questions propounded numerous, and it is with much difficulty one can determine the validity of the exceptions raised, in this general way, to even very irrelevant evidence. The issue, — whether or not for a valid consideration, the plaintiff released his salary, — is a simple one, which has been greatly obscured on the trial, by the introduction of much irrelevant evidence, introduced especially on the part of the plaintiff.

5. The 5th assignment of error is without merit. If there was error in refusing to allow the defendant’s witness to testify that there was such a contract as that inquired about, it was cured by the immediate introduction by defendant, without objection from plaintiff, of the contract itself.

6. The court allowed the plaintiff in his rebutting examination to repeat,.that he had resigned his office as vice-president in December, 1889, and that of general manager, shortly thereafter. The only objection to this evidence was, that it was a repetition of what the witness had before stated. It is not well to allow useless repetitions by a witness, as they consume time, and encumber the record ; but such matters must, be left to the enlightened discretion of the court.

The other parts of said Field’s examination, in which he was allowed to state why he resigned ;- his conversation with Hudson about his salary ; that Hudson was a salaried officer and got his pay; and the letter of Hudson to Field, of date November 1, 1889 ; the statement that Hudson was in arrears to the. company ; that the salary of the secretary was paid; the .conversation..between Allen and plaintiff about the collection of his salary, and the statement of said Allen, as a witness, that other creditors of the company had to threaten suit before they could get their claims paid, were all plainly irrelevant, and out not to have been admitted in evidence.

7. Charges 1, 2 and 5, at the request of the plaintiff, should not have been given. — Harris v. Russell, 93 Ala. 60 ; Rowe v. Baber, Ib. 422 ; Ala. G. S. R. R. Co. v. Hill, Ib. 516.

Charge No. 3 as requested by plaintiff was applicable to defendant’s 2d and 3d pleas, and in effect instructed the jury that the defendant must make good the release there set up. The .contract had been only partly performed, and money was due on it to plaintiff. For like reasons, charge 9 was free from error.— Westmoreland v. Porter, 75 Ala. 460; Nesbitt v. McCee, 26 Ala. 748. If the defendant apprehended the jury might have been misled, in anywise, by these charges, it was competent for it to have asked an explanatory charge.

8. One of the counsel for plaintiff, in his argument to the jury, in referring to parties composing the defendant corporation, used this language: “They came down here, a party of rich northern capitalists, wanting to speculate on our property, and are now trying to rob an elegant, chivalrous southern gentleman of his justly and hard earned salary.” On objection raised by defendant’s counsel, the court said the objection was sustained, and stated to counsel making the remark, that it was improper, whereupon the said counsel remarked, “Well, I withdraw the remark. ’ ’ There was no exception reserved by defendant, to this remark of counsel, nor to the action of the court upon it. Nor is it made the basis of a motion for a new trial. It is, however, assigned as error. We have referred to it, to state,'that the remark was calculated to seriously prejudice and injure the defendant with the jury. The action of the court in excluding it, was very mild, and not a sufficient antidote to the poison that had been injected into the minds of the jury by the use of such language. Verdicts ought not to be won by such methods, and when an attorney, in the heat of debate, goes to such extraordinary lengths, generally, the court should promptly set aside any verdict that may be. rendered for his client. The repressive powers of a court,to prevent-such departures from legitimate' argument of ai cause befóte a jury, should be vigorously applied. No mere statement, that it is out of order or improper, can meet the exigencies of the case. Nothing short of such action on the part of the court, and a clear satisfaction, that the prejudice naturally excited by the use of such language had been removed from the minds of the jury, ought ever to rescue a case from a new trial on motion of the party against whom rendered. — Anderson v. State, ante, p. 83.

Reversed and remanded.