Boss Livery Co. v. Griffith

85 So. 849, 17 Ala. App. 474, 1920 Ala. App. LEXIS 131

Opinion

MERRITT, J.

[1,2] The appeal in this ease is from a judgment overruling appellant’s motion for a new trial, and the assignment of error is that the trial court committed error in refusing to grant a new trial to the appellant. The submission of the appeal in this court is upon confession of error by the appellee. No briefs have been filed in the cause, and the question is squarely presented wheth er this court should, on the confession of error, reverse the case and grant the appellant a new trial, irrespective of the fact as to whether the trial court committed error in its ruling on said motion. We have carefully considered the record in this case, and it appears that the trial court was right in overruling the motion for a new trial, there being no error; and, this being true, the trial court should not be put in error where there is .none.

Consent or agreement of the parties cannot oust a court of its appellate jurisdiction, or limit the principle of decision by excluding certain legal considerations which may be pertinent to the issue. 2 Cyc. 537; State v. Crook, 123 Ala. 657, 27 South. 334.

It would he puzzling to say the least, as to how the trial court would proceed in another trial of this cause, should we act on the confession of error, when none has been pointed out or assigned, and in fact when none exist.

So it necessarily follows from what has been said that the cause must be affirmed.

Affirmed.