Louisville N. R. Co. v. Scott ( 1935 )

On Petition for Mandamus. Final judgment was rendered for defendant on August 27, 1932.

A motion for a new trial was prepared for plaintiff and presented in person to the presiding judge in a county of the circuit other than that in which the trial was had. The judge indorsed on it an order continuing the motion to December 24, 1932, and dated the order September 7, 1932. The motion had not been filed with the clerk before it was presented to the judge and ordered continued by him. Its date of filing is September 8, 1932, after the judge had indorsed it. On December 7, 1932, the judge made another order continuing the motion "till January 10, 1933." On January 10th he made another order, and finally granted the motion.

Petitioner here contends that when the court continued the motion to December 24, 1932, he had no jurisdiction, because the motion had not been filed before the order of continuance was made, for that the statute, section 6670, Code, provides that the motion to set aside the judgment shall first be "filed and called to the attention of the court, and an order entered continuing it for hearing to a future day."

We do not think there is any virtue in the claim that the motion must be filed before the judge orders a continuance. When the motion is filed with the order indorsed on it, they both become operative at the same time. Neither is so until it is filed with the clerk or entered on the motion docket. Mt. Vernon Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91,155 So. 716. But when it is thus filed or entered, it is effective on that day, not the day on which the indorsement is signed by the judge. This must be done within the time required by section 6670, Code. We also in that case pointed out that the order of continuance of the motion is merely procedural, may be made by the judge, as distinguished from a constituted court, and at any place in the state, citing section 6710, Code, and several of our cases.

Again it is insisted that the court lost jurisdiction over the motion by not acting before January 10, 1933, since the order of continuance was "till" that day — meaning before, up to, but not including. When a period of time in which an act must be done is referred to as "to," "till," or "until" a certain date, such words usually exclude the specified date. Oberhaus v. State, 173 Ala. 483, 55 So. 898; Richardson v. State, 142 Ala. 12, 39 So. 12; Heal v. State, 147 Ala. 686,40 So. 571. But this construction is not of universal application, dependent upon the intention with which it is used as manifested by the context, and considered with reference to the subject to which it relates. 62 Corpus Juris 986. An act which provides that a term of the court shall begin on a certain day and continue until a certain Saturday, that Saturday was held to be a part of the term due to the common understanding that such was its meaning. Montgomery Traction Co. v. Knabe,158 Ala. 458, 48 So. 501.

The order here made does not purport to prescribe a period of time in which the hearing of the motion must be had, but, as we interpret it, undertakes to specify a date for the hearing. True, until that time, the court retains jurisdiction, and may fix another time later or earlier. But the order here in question shows an intention to set a date for the hearing. That date is January 10, 1933. That is a form not uncommonly used for fixing the date of a hearing when the word "continuance" is used. When a cause is continued "till" another date, it commonly means to designate that date as the one fixed for its hearing. Otherwise no date is fixed. We think that for the reasons stated in the Knabe Case, supra, the court fixed January 10, 1933, as the date for the hearing, and retained jurisdiction sufficient to hear it on that day, or then make another order of continuance. That was done.

The petition for mandamus is therefore denied.

On Appeal. In the judgment granting the motion for a new trial from which this appeal was taken by defendant, it was recited that the motion was granted on account of prejudicial error to plaintiff on the main trial in refusing to allow the testimony of Stella Mainard taken on a former trial to be introduced by plaintiff, she being then dead, as shown by grounds of the motion, numbered 56, 57, and 58, and that the other grounds should be overruled. (Record p. 152.)

Ground numbered 56 (p. 121) of the motion was based on a ruling of the court sustaining defendant's objection to the introduction of the entire testimony of Stella Mainard on a former trial of this very suit.

Grounds numbered 57 and 58 are on rulings sustaining objections to portions of the same testimony in which the witness was questioned in respect to her testimony on the trial of a different suit growing out of the same transaction, and which was contradictory of that then given in this suit. She had testified for defendant in that suit, in which the plaintiff was Lee as administratrix of Mrs. Scott, the deceased wife of the intestate of plaintiff in this suit. That will be hereafter referred to as the Lee case, to distinguish it from this. She had also testified for defendant on a former trial of this case, in which she was questioned on cross-examination about what she had said in the Lee case of a contradictory sort.

Plaintiff first offered on the trial of this suit her testimony given in the Lee case. The court sustained the objection made by defendant. Plaintiff then offered portions of such testimony. The court sustained objections to such portions. But those rulings are not included in grounds 56, 57, or 58 of the motion for a new trial.

The grounds of the motion for a new trial on which the court acted did not relate to the evidence given in the Lee case, except as it was a part of her testimony on a former trial of this case. The plaintiff then offered her testimony given in this case, including some of that in the Lee case, which had been used apparently as a predicate for impeachment. The motion for a new trial was granted on the ground that such evidence was improperly excluded by the court. So the question here is whether plaintiff had the legal right to offer the testimony of this witness thus taken for defendant on a former trial, including references to her testimony in the Lee case.

Defendant had proven on this trial by the husband of the deceased witness and by other witnesses that the whistle blew before it reached the crossing where the accident occurred. On the former trial of this case the deceased witness had so testified and on her cross-examination it was brought out that she had testified to a different effect in the Lee case.

This case has been before this court on two former appeals. Scott v. Louisville N. R. Co., 217 Ala. 255, 115 So. 171; Louisville N. R. Co. v. Scott, 222 Ala. 323, 132 So. 29. On the last trial counts in simple and subsequent negligence and wantonness were submitted to the jury.

Plaintiff's intestate was killed at a public road crossing. He was driving the car and his wife was also killed. Plaintiff contended that the whistle was not blown for the crossing. Defendant contended that it was. It was material to all the counts since it was a public crossing. Section 9952, Code; So. Rwy. Co. v. Diffley, 228 Ala. 490, 153 So. 746.

Plaintiff and defendant had offered testimony on that subject. Among defendant's witnesses was the husband of the deceased witness who testified that the whistle did blow before reaching that crossing, though she had testified otherwise in the Lee suit. Her testimony in that case on that point would be admissible in this case only by way of impeaching her.

"The party against whom the testimony of a deceased witness on a former trial, or in a former investigation, is offered, is allowed to make every objection which could be made, if the witness were in life, and personally offered as a witness for the first time." House v. Camp, 32 Ala. 541, 549; Crary v. Sprague, 12 Wend. (N.Y.) 41, 27 Am.Dec. 110; 22 Corpus Juris 427.

Mrs. Mainard was defendant's witness only for the trial in which defendant introduced her as such. But "independently of that trial [she] was not the witness of the defendants, unless they again chose to make [her] such. Had [she] been living and been introduced by the plaintiff on the second trial, it could not for a moment be contended that the defendants were not at liberty to take any exceptions to [her] testimony." Crary v. Sprague, supra. When plaintiff therefore offered her testimony, given on the former trial of this suit, he made her his own witness, and could not impeach her credibility for that trial. Fountain's Adm'r v. Ware, 56 Ala. 558; Jewell v. Center,25 Ala. 498; Gandy v. State, 81 Ala. 68, 1 So. 35; Barker v. Bell,46 Ala. 216.

Plaintiff offered the entire testimony of Mrs. Mainard taken in this case on a former trial. That testimony included as a predicate questions relating to her testimony in the Lee case, which showed that it was materially different from that which she was then giving. A party has no right to impeach his own witness, nor to show contradictory statements by her. He may, when taken by surprise, prove by her that before using her as a witness she had made a different statement to him. This is merely to refresh her testimony or justify him in putting her up as his witness to that fact. Gandy v. State, supra; White v. State, 87 Ala. 24, 5 So. 829; Griffith v. State, 90 Ala. 583,8 So. 812; Thomas v. State, 117 Ala. 178, 23 So. 665; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Peterson v. State, 227 Ala. 361, 369, 150 So. 156; Greenleaf on Evidence, § 444.

No such situation here exists. The effort shown on her cross-examination made by plaintiff was to impeach her as a witness for defendant, and has no place in her testimony when it is offered by plaintiff on the subsequent trial of the same suit, after her death. Such cross-examination made by plaintiff, legal when she was the defendant's witness, was illegal when she became plaintiff's witness. Gandy v. State, supra; Barker v. Bell, supra.

Plaintiff should have offered that part of her testimony, if he wanted it, which did not contain the impeaching predicate. Curtis v. Parker Co., 136 Ala. 217, 33 So. 935. Being offered as a whole, when some of it was patently illegal, the whole could without error be excluded for illegality; otherwise illegal evidence could be made available. Therefore there was no error in sustaining the objection to that evidence offered in its entirety. The party against whom it is offered is entitled to it all, if he requires it. Magee v. Doe ex dem. Hallett, 22 Ala. 699 (8), 720. This was ground numbered 56 of the motion for a new trial, one of those on which the court bases its judgment granting the new trial.

We do not think the testimony so offered was subject to the other grounds of objection, not considering for the time its want of beneficial effect to plaintiff had it been introduced. The fact that it was originally taken for defendant is not a valid ground of objection. Crary v. Sprague, supra; House v. Camp, supra; Stewart v. Hood, 10 Ala. 600, 607; Edgar v. McArn,22 Ala. 796, 812 (6); Jewell v. Center, supra; Fountain's Adm'r v. Ware, supra; Curtis v. Parker Co., 136 Ala. 217,33 So. 935.

Since defendant examined the witness on the trial, it is immaterial whether it was direct or cross, so far as this question is concerned. 3 Wigmore on Evidence p. 80; 22 Corpus Juris 427 (58); Roberts v. Gerber, 187 Wis. 282, 202 N.W. 701; Stewart v. Hood, supra; Fountain's Adm'r v. Ware, supra.

The two other grounds of the motion for a new trial (57 and 58) which the court held should be sustained related to the offer of plaintiff to introduce separately those portions of his cross-examination of the witness on the former trial which related to her testimony in the Lee case different from that which she was then giving, and different from Mr. Mainard's testimony on this trial. Separately considered, it only could be treated as an offer to prove her testimony in the Lee case. That was a suit for damages for the death of the wife, this was for the death of the husband. The parties were not the same in substance or effect. This is a requisite to its admissibility. Hines v. Miniard, 208 Ala. 176, 94 So. 302; Julian v. Woolbert,202 Ala. 530, 81 So. 32; Alabama Consol. C. I. Co. v. Heald,171 Ala. 263, 55 So. 181; Smith v. Keyser, 115 Ala. 455,22 So. 149; Turnley v. Hanna, 82 Ala. 139, 2 So. 483; Floyd v. State, 82 Ala. 16, 2 So. 683; Jeffries v. Castleman, 75 Ala. 262; Clealand v. Huey, 18 Ala. 343; 6 Michie, Dig. p. 529, § 440.

Plaintiff did not separately offer that part of the testimony of the witness given on former trial of this suit, which recited the facts of the occurrence. Such testimony was not apparently materially favorable to plaintiff, but rather unfavorable, it appears to us; and whether its exclusion, if it had been so offered, would have been prejudicial to plaintiff need not be considered.

It was discretionary with the trial court to permit plaintiff on rebuttal to offer further evidence of a legal sort on an issue on which both parties had presented their testimony. Mooneyham v. Herring, 204 Ala. 332, 85 So. 390.

And if the trial court had afterwards determined that the discretion had been improperly exercised, and that in the interest of justice he should have admitted the evidence, and for that reason granted the motion for a new trial, it would have been in his discretionary right to do so, subject to the review here which such ruling justifies. But that right does not exist when the evidence as offered was illegal, and subject to the objection made to it on that ground.

Moreover, the motion was not granted on a reversal by him of his exercise of a discretionary right, but the judgment recites that in sustaining the objection to the evidence of Mrs. Mainard on the former trial, grounds 56, 57, and 58, the court committed prejudicial error, and for that error granted the motion, but that the other grounds were not well taken. We do not agree that there was such error committed in sustaining that objection. We think that the court erred in granting the motion for a new trial on grounds 56, 57, and 58.

Reversed and rendered.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.