Schaeffer v. Walker , 241 Ala. 530 ( 1941 )

The appeal was from an order setting aside a judgment and granting a new trial.

It is the duty of the court to set aside a verdict and grant a new trial, though the evidence is in conflict, if the trial court has a definite and well-considered opinion from the evidence that the verdict failed to do justice under the proper pleadings directing and guiding the trial.

In Parker et al. v. Hayes Lumber Co., 221 Ala. 73,127 So. 504, it is said: "* * * The evidence was in conflict, but the trial court saw and heard the witnesses, and on appeal some presumption must be indulged in favor of its action. As was said in Batson v. State, 216 Ala. 275, 113 So. 300, courts of record have inherent power, independent of the statute, to set aside and vacate their orders and judgments within the term and for common-law causes. Hence we attach no controlling importance to the fact that appellees in their motion described the verdict as contrary to the great weight of the evidence and as contrary to the preponderance of the evidence rather than as, in the language of the statute, section 9518 of the Code [Code 1940, Tit. 7, § 276], not sustained by the great preponderance of the evidence. * * *"

See, also, Alabama By-Products Corp. et al. v. Rutherford,239 Ala. 413, 195 So. 210, for other authorities.

Under grounds of the motion the court had the inherent power to set aside the verdict of the jury independent of the statute within the terms and for the common law causes.

In Batson v. State ex rel. Davis, Solicitor, 216 Ala. 275,113 So. 300, 302, it was observed: "The intent to strike down the power of the common-law courts, in the exercise of its inherent power to grant a new trial where seasonably made and on recognized grounds at common law, is not clearly evidenced in the statute. Woodward Iron Co. v. Brown, 167 Ala. 316,52 So. 829; Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842, 8 Am.St.Rep. 748; 29 Cyc. 722, 727, 759. That is to say, courts of record have inherent power independent of the statute to set aside and vacate their orders or judgments within the term and for common-law causes. 15 R.C.L. 688."

See, also, 46 Corpus Juris p. 59, § 2; Tyler v. Aspinwall,73 Conn. 493, 47 A. 755, 54 L.R.A. 758.

The rule of the common law is thus stated in 34 Corpus Juris, § 436, p. 207: "A court has full control over its orders or judgments during the term at which they are made, and may, upon sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, supplement, open, or vacate such judgments. This was the rule at common law, and it prevails in almost all jurisdictions. * * *."

See the following authorities: Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Lockwood v. Thompson, 198 Ala. 295,73 So. 504; Ex parte Doak, 188 Ala. 406, 66 So. 64; Evans v. Wilhite, 167 Ala. 587, 52 So. 845. Ex parte Elyton Land Co.,104 Ala. 88, 15 So. 939; Talladega Mercantile Co. v. McDonald,97 Ala. 508, 12 So. 34; Rich v. Thornton, 69 Ala. 473; Desribes v. Wilmer, 69 Ala. 25, 44 Am.Rep. 501; Johnson v. Lattimore,7 Ala. 200; Acre v. Ross, 3 Stew. 288; Neale v. Caldwell, 3 Stew. 134.

The court acted upon its own motion under its inherent power to vacate the decree in accord with the public policy of the state. Ex parte Johnson, 238 Ala. 584, 192 So. 508.

The trial court saw and heard the witnesses on the trial and, within the time prescribed by statute, granted a new trial. We will not disturb the same. Cobb v. Malone Collins, 92 Ala. 630,9 So. 738; Code 1940, Tit. 7, § 276, p. 281.

It is insisted by appellant that the suit was against W. F. Schaeffer, as an individual, and not as trustee, etc. Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Gladden v. Columbiana Savings Bank, 235 Ala. 541, 180 So. 548.

This phase of the pleading was amendable to meet the facts as a suit against Schaeffer, as trustee. Briel v. Exchange Nat. Bank, 172 Ala. 475, 55 So. 808. We may note the same defect is contained in the pleading by the suit of Walker, administrator, etc. The word "as" should have been embraced in the pleading. The case was so tried and issue determined as that of Walker, administrator of the estate of A. W. Walker, deceased, as plaintiff, against W. F. Schaeffer, trustee of North Alabama Motor Express Co. Inc., a corporation. This was not called to the attention of the court. The record, evidence and charge of the court indicated that the trial was had against Schaeffer, as trustee of the North Alabama Motor Express, Inc., a corporation. Under this view of the case the defendant was not entitled to the affirmative charge requested. That is to say, the variance was not called to the attention of the trial court under Circuit Court Rule 34 of the Code of 1923, Code 1940, Tit. 7, p. 1035, Rule 34.

It follows from the foregoing that the judgment of the trial court should be and the same is affirmed.

Affirmed.

GARDNER, C. J., BROWN, and FOSTER, JJ., concur.

On Rehearing.