Reynolds v. City of Birmingham , 29 Ala. App. 505 ( 1940 )

The law is fully recognized by our appellate courts that, before a party to a suit at law is entitled to a new trial upon the ground of surprise, he should take proper steps for a postponement of the case in order that he may have opportunity to meet the exigency presented by the unexpected evidence. In no sense has this opinion disregarded this rule.

It is a fact (as urged by appellant) that when the appellee was confronted with the defendant's alibi "the attorney for the City of Birmingham made no request for a continuance, claimed no surprise, but contented himself with asking for subpoenaes for certain witnesses and proceeded without objection with a trial to a verdict." Counsel for appellant seem to be impressed that this, in some way, controlled or excluded the authority of the trial court to grant the new trial, even though there were other grounds in the motion upon which the ruling could rest. Had the order of new trial been predicated solely upon the ground of surprise, some merit might be accorded this argument. Such, however, is not the condition of the record.

There were other grounds in the motion for new trial upon which the court properly could have, and may have, rested its order granting the motion, such as, that the verdict was contrary to the weight of the evidence, or — if having a wellfounded opinion that the purported alibi of the defendant was in fact spurious — that to allow the verdict to stand would result in a palpable and material wrong. Under such circumstances, as clearly demonstrated in our first opinion, above, that court had the right — and, if in order to effect justice between the parties, it was its duty — to set aside the verdict. Parker v. Hayes Lumber Co., and other cases cited, supra.

This being the state of the record, the reviewing court should not and will not disturb such ruling. This court therefore maintains the view that to reverse the judgment here appealed from would be unwarranted and affirmance is due.

Opinion extended and application overruled.