Alabama Steel & Wire Co. v. Sells , 168 Ala. 547 ( 1910 )

DOWDELL, C. J.

The mere repetition, in brief of counsel for appellant, of the assignment of an error on the record, without more, has been repeatedly decided by this court not to amount to insistence in argument, and in such case the assignment will be regarded as waived.—Birmingham Railway, Light & Power Co. v. Oldham, 141 Ala. 200, 37 South. 452; B. R., L. & P. Co. v. Landrum, 153 Ala. 192, 45 South. 201, 127 Am. St. Rep. 25, and other cases.

As a sample of the argument in appellant’s brief, on many of the assignments of error, we quote the following: “The questions propounded by plaintiff to the witnesses (assignments 10, 16, 23, etc.), with reference to the condition of the mines at periods remote from the time of the accident, were improper.” “The charges given at plaintiff’s request were erroneous. Defendant’s first charge should have been given. The second, fourth, eighth, ninth, tenth, eleventh, and twelfth charges refused to defendant were also clearly proper charges and should have been given.” “Its rulings on demurrers to the complaint and sustaining demurrers to defendant’s pleas were erroneous.” This, in reality,, is nothing more than a repetition of the assignment on the record, and, under the cases above cited, cannot be considered an insistence in argument.

All of the counts of the complaint counting on negligence of Anderson Donaldson, the fire boss, were withdrawn by the plantiff, and with plaintiff’s consent the evidence introduced under these counts as to the negligence of said Donaldson was excluded by the court. Exceptions reserved on the introduction of this evidence were thereby rendered unavailable.

The overruling of the motion for a new trial is assigned as error. The appellee contends that the motion was “not kept alive as required by law” in the court below, but was suffered to be discontinued by a failure to have the motion regularly continued on the docket. Whatever of force might otherwise- be found in this contention, it is overcome by the fact that after the time of the alleged discontinuance the appellee consented to an amendment of the -motion, and went to trial on it without objection. In this there was a waiver of the -discontinuance.—McCarver v. Herzberg, 135 Ala. 542, 33 South. 486.

One of the grounds for the motion for a new trial, and which is here separately assigned as error, that is insisted on in argument, and the only one that is argued with a. degree of seriousness, relates to the remarks of counsel for plaintiff to the jury. The bill of exceptions, however, in this connection, recites that “no motion was made by defendant’s counsel to exclude from the jury the remarks of plaintiff’s counsel above stated. Tbe court made no comment at any time with reference to the same, and did not rebuke counsel for. plaintiff for tbe use of sucb remarks, and defendant’s counsel reserved no exceptions to tbe court’s action in reference thereto.” So it appears that neither objection nor exception was taken at tbe time of tbe remarks of counsel.

We know of no decision of ours that bolds that objection can for tbe first time be made and availed of •on a motion for a new trial. It should have been made, and exceptions duly reserved, at tbe time of tbe trial.

We find no reversible error in anything that is insisted on in argument by counsel for appellant. Tbe judgment will be affirmd.

Since tbe writing of tbe foregoing opinion, counsel for appellant have filed what is designated as a supplemental brief. In this brief, assignments of error not insisted on in tbe original brief, filed at tbe time of tbe submission of tbe cause, are now for the first time urged in argument.

Counsel for appellee insists that what purports to be a bill of exceptions in the transcript was not signed within the time prescribed by law. An inspection of the record discloses that the bill was signed more than six months after the trial, and after the commencement of a subsequent term of the court. This all transpired before the-adoption of the present Code (1907). Rule 30, Circuit Court Practice, Code of 1896,, p. 1200; Bank & Trust Co. v. Keith, 136 Ala. 469, 34 South. 925.

We were at first of tbe opinion that tbe discontinuance of tbe motion for a new trial, made in tbe court below, bad- been waived by appellee’s consenting to an amendment of tbe motion after tbe discontinuance arose. We find upon further investigation that we were mistaken in supposing, or rather, in concluding, that sucb consent bad been made.

The hill of exceptions, not having been signed as required by law, cannot be considered as to the original hearing, nor as to the motion for a new trial, since .any rights under that motion had failed by reason of the •discontinuance.

We see no reason for changing our first conclusion of an affirmance of the judgment appealed from.

Affirmed.

Anderson, Sáyre, and Evans, JJ., concur.