Bailey v. Norred

Felton, C. J.

When this case was last before this court the judgment was affirmed with the following direction: “As we view the case the defendant is not entitled to a new trial provided the plaintiffs will write off the $10 credit from the judgment returned before the remittitur is received in the trial court. Otherwise, a ■new trial is granted.” The question is now presented whether the $10 was written off in time to prevent the granting of a new trial. The clerk’s records in the trial court do not show when the remittitur was received from this court. The file of papers in the case contained a letter dated June 25, 1955, from counsel for the plaintiff authorizing the clerk to write off the $10 in compliance with the decision of this court. The trial court docket contained a notation with respect to reducing the amount of the judgment, but there is no date on the notation. The order of the trial court making the judgment of this court the judgment of the trial court was signed on June 28,1955. There was a notation on the reverse side of the remittitur to the effect that it was filed in the office of the trial court clerk on June 28, 1955. Both sides concede that the letter of the plaintiff’s counsel was received prior to June 28, 1955.

In view of the above the trial court did not err in holding that the write-off of the $10 was in time and that the direction of this court pertaining to the write-off was complied with.

The court did not err in denying the renewed motion for a new trial.

Judgment affirmed.

Quillian and Nichols, JJ., concur.