Dollahite-Levy Co. v. Overton

147 So. 689, 25 Ala. App. 421, 1933 Ala. App. LEXIS 88

• Court: Alabama Court of Appeals
• Decided: April 18, 1933
• Docket: 6 Div. 247.
• Status: Published

Opinion

RICE, Judge.

This is the second appeal in this case. See' Dollahite-Levy Co. v. Overton, 223 Ala. 12, 133 So. 903.

The law, governing, was sufficiently hut-lined by our Supreme Court — to which' the case was transferred, under the statute (Code 1923, § 7326) upon the first appeal. Dolía-' hite-Levy Co. v. Overton, supra.' '

So far as we can see the second trial was conducted in all essential respects in accord! anee with the law, as indicated above.' 1

The learned trial judge’s oral charge, in. connection with the written charges given at appellee’s request, stated to the jury correctly, in our opinion, the applicable rules' of law.

We have inspected and examined the ruling underlying each assignment of error properly argued here; and we are of the opinion that, as to each of said rulings other than that denying to appellant a new trial, ■ etc.,' the verdict of the jury would not have been different had the ruling been changed .to agree with appellant’s contention. So, for none of such would the judgment be reversed. Supreme Court Rule 45.

And we are further of the opinion that the: evidence made, in the first instance, a ease for the jury; and more, that it was sufficient to support the verdict returned.

But while what is said hereinabove states our views, we are not called upon to actually base our disposition of this appeal thereon. ",

The brief filed here upon behalf of ap-: pellant — rather, a copy thereof — is not shown' to have been served upon appellee’s counsel, in accordance with Supreme Court Rule 13, That being the case, same cannot be considered ; with the result that, nothing being presented for our decision, the judgment appealed from will be, and is, affirmed. First Natl. Life Ins. Co., etc., v. Swindle, ante, p. 289, 145 So. 173.

Affirmed.