Fountain v. Loper

397 So. 2d 107, 1981 Ala. LEXIS 3415

Opinion

PER CURIAM.

In an unpublished memorandum opinion dated January 16, 1981, this Court ordered that the submission of Case No. 79-469 be set aside and the appeal dismissed. This Court further ordered reinstatement of the appeal in Case No. 78-498, rendering null and void all proceedings of the trial court (purporting to amend the jury verdict) that were entered subsequent to the taking of the appeal in Case No. 78-498.

The confusion — out of which these various orders and counterorders arose — grew out of a jury verdict that found for the Plaintiff against the “Defendant” in the context of multi-defendant pleadings. While a majority of the Court was of the opinion that only one Defendant remained in the case at the time of its submission to the jury, the minority expressed the view that this determination should be left to the trial court on remand of the cause.

Upon resubmission and our further consideration of the entire record on appeal, we are constrained to hold that the verdict is inconsistent with the case as postured by the pleadings, the issues tried, and the trial judge’s jury instructions.

Therefore, the trial judge erred in not granting the Appellant’s motion for a new trial.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.