Mobile Light & Railroad v. Hansen , 135 Ala. 284 ( 1902 )

TYSON, J.

This appeal is prosecuted from an order of the circuit court setting aside a non-suit taken by the plaintiff. A motion is made here to dismiss the appeal. This motion must be granted unless the order setting aside the non-suit was the granting of a new trial within the purview of section 434 of the Code authorizing an appeal from an order granting or refusing a motion for a new trial. In Truss v. B. L. & M. R. R. Co., 96 Ala. 316, the question arose as to whether an order settting aside a judgment by default, was the granting of a new trial within the meaning of this statute. It Avas held that it was not and the appeal dismissed. The court said: “A new trial is defined to he a ‘re-examination of an issue of fact in the same court after a trial and decision by a jury, or court, or by referees.’ There is nothing in the act of February 16, 1891, [§ 434 of Code], which suggests a different meaning for the words ‘new trial’ from that they have at the common law. On the contrary, the requirement of the statute that the substance of the evidence and the decision of the court on the motion shall be set out in a bill of exceptions is clearly indicative of the legislative intent to limit the application of the statute to motions for new trials in cases where there has been a trial of fact,” etc. It is true in the present record there is a bill of exceptions containing the evidence offered by the plaintiff which was excluded by the court below on motion of defendant in consequence of which the plaintiff was non-suited. But this is not all that is involved in the statute. There must have been the trial and decision of an issue of fact, and the motion must involve a re-examination of that issue after a trial and decision of it. The non-suit taken by the plaintiff under the circumstances shown in this record did not constitute a trial or decision on the facts in the case. As said by the Supreme Court of Maine, quoted approvingly by Mr. Black in his work on Judgments, section 699, “in ordering a non-suit on account of the insufficiency of the plaintiff’s evidence, the court simply declares the law applicable thereto. It says the facts proved by the plaintiff fail to cast any legal liability upon the defendant; but it does not attempt to determine the actual facts of the case, nor can it do so, for the law has imposed that duty elseAvhere and as the facts of the case are not determined, it does not follow that tlie plaintiff in some future suit may not be able to produce more and better evidence of Ms claim, which, he is at liberty to do.” This quotation is but an extended announcement of the well settled rule that a judgment of non-suit involves no element of an estoppel — of res adjudiaata— because there is no trial of an issue of fact, no decision or determination of the facts—Note in 49 Am. St. Rep. 831-833; 1 Freeman on Judgments, § 261. We are of opinion that the motion to dismiss the appeal must be granted.

Appeal dismissed.