Fisher v. Prescott

166 So. 439, 27 Ala. App. 101, 1936 Ala. App. LEXIS 42

• Court: Alabama Court of Appeals
• Decided: March 3, 1936
• Docket: 5 Div. 984.
• Status: Published

Opinion

RICE, Judge.

There were two suits brought against M. L. Fisher, doing business in the name of Fisher’s 5 & 10 Cent Store. One suit was by Velma Prescott, a minor suing by next friend, S. W. Prescott; and the other by Annie Jewel Nolen, a minor suing by next friend, Shelley T. Nolen.

The matters complained of grew out of the same transaction; so, in the court below, and here, it was and is agreed that the two cases be treated as one. We so treat them.

Upon the trial there was verdict and judgment in- favor of the defendant.

This appeal is from the order or judgment of the trial court setting aside said verdict and judgment upon plaintiffs’ (appellees’) motion.

But the bill of exceptions does not contain the decision on said motion, as required by the statute. Code 1923, § 6088.

It is now well settled that before the order of the trial court granting or refusing a motion to set aside the verdict of the jury and the judgment rendered thereon will be considered on appeal, the bill of exceptions must, contain at least a recital that said motion was made and ruled on, and show an exception reserved to the said ruling. Code, § 6088, supra; Law et al. v. Ogle, 224 Ala. 344, 140 So. 393; Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801.

There is therefore nothing before us which we can review. Code 1923, § 7318. And the judgment is affirmed.

Affirmed.