Stewart v. Guy

Stewart v. Guy. Action of Detinue. 1. Motion for new trial; when dill of exceptions does not purport to set out all of the evidence. — Where an appeal is taken from a judgment in a civil suit overruling a motion for new trial, upon the ground that the verdict and judgment wer.e contrary to the evidence, and the bill of exceptions does not purport to set out all of the evidence adduced on the original trial, the judgment of the court overruling such motion will not be disturbed; it being impossible for the court to say whether or not the weight of the evidence was against or in ’ favor of the verdict. 2. Appeal; failure to reserve exceptions cannot de cured dy motion for new trial. — The failure to reserve an exception to the ruling of the trial court in giving a charge to the jury, cannot be cured by motion for new trial so as to render such ruling revisable on appeal. ■ Appeal from Circuit Court of Clarke. Tried before the Hon. John C. Anderson. This was a statutory action of detinue, brought by the appellant, J. C. Stewart, against the appellee, E. J. Gnv, to recover the possession of a horse. There were verdict and judgment for the defendant, thereupon the plaintiff moved the court to grant him a new trial upon the following grounds: First, because the verdict was contrary to the evidence; second, because the verdict is contrary to the law; third, because the verdict is contrary to the law and the evidence. The fourth ground of motion for new trial was that the court had erred in giving a charge to the jury ex mero motu. The ruling of the court upon motion for new trial is the only question presented for review on the present appeal. The bill of exceptions does not show that the plaintiff reserved an exception to the giving of the charge by the court, the giving of which charge is lhade one of the grounds of the motion for a new trial. The bill of exceptions does not purport to set put all of the evidence. The court rendered a judgment overruling said motion, and refused to grant plaintiff a new trial. From this judgment tlie plaintiff appeals and assigns as error the rendition thereof. John S. Grai-iam and W. D. Dunn, for Appellant. Lackland & Wilson, contra. [MAJORITY — DOWDELL, J.] DOWDELL, J. The overruling of a motion for a new trial is the only matter assigned as error in the record. The bill of exceptions does not purport to set out all of the evidence had in the original trial, and in this state of the record it is impossible for this court to say whether the weight of the evidence was against, or in favor of, the verdict. The judgment of the court, therefore, on the motion relating to the evidence and verdict will not be disturbed. To the charge given ex mero motu by the court, it does not appear that any exception was reserved on the trial. The failure to reserve an exception to the charge of the court on the trial, cannot be cured by a motion for a new trial. — Tobias & Co. v. Triest & Co., 103 Ala. 664. We find no reversible error in the record, and the judgment will be affirmed.