Jackson v. Lowe

266 So. 2d 891, 48 Ala. App. 633, 1972 Ala. Civ. App. LEXIS 412
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 12, 1972
Docket6 Div. 68
StatusPublished
Cited by2 cases

This text of 266 So. 2d 891 (Jackson v. Lowe) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Lowe, 266 So. 2d 891, 48 Ala. App. 633, 1972 Ala. Civ. App. LEXIS 412 (Ala. Ct. App. 1972).

Opinion

BRADLEY, Judge.

The appeal here is from a judgment in the amount of $8,000.00 rendered after jury trial against the defendant, Jackson, appellant here.

The plaintiff, Lowe, appellee here, had filed a three count complaint against appellant in the Circuit Court of Blount County. Count One of the complaint sought $1,850 due by account; Counts Two and Three sought $9,000 plus punitive damages for fraud by misrepresentation and deceit in the sale of a 1965 Chevrolet automobile. There was a demurrer and plea in short, etc.; then a jury trial which ended in a verdict for appellee. The motion for new trial and the amended motion for new trial was overruled. Thereupon an appeal was taken to this court.

The record of the proceedings had below which is now on file in this court shows a purported amendment to the minute entry so as to reflect a change in the wording of the jury verdict.

The original minute entry reflected a jury verdict as follows:

“We, the jury, find in favor of the plaintiff and against the defendant.”

The so-called amended minute entry expresses the jury verdict in this fashion:

“We, the jury, find the issues in this case in favor of the plaintiff and against the defendant and assess plaintiff’s damages at $8,000.”

Appellant has moved this court to strike the purported amendment to the minute entry.

The evidence in the case tended to reveal the following facts, notwithstanding the absence of a “Statement of Facts” in appellant’s brief:

In December 1965 appellee, in the company of Charles Eakes, went to appellant’s place of business in Blount County. While there he agreed to buy, and did buy, a 1965 Chevrolet Impala. The price of the car was $1,850, with $1,200 of the purchase price being borrowed from the Citizens [636]*636Bank of Oneonta. Pursuant to instructions from Ealces, purportedly a salesman for appellant, and appellant, appellee obtained a cashier’s check made payable to Palmer Dale Motors.

The cashier’s check plus $650 in cash was given by appellee to appellant at appellant’s place of business.

The evidence also showed that the cashier’s check was presented to the State National Bank of Oneonta by appellant and he requested the bank to give him $600 in cash and to place the balance in an account owned jointly by him and his wife.

Several months after the purchase, appellee was informed that the vehicle he had purchased was a stolen vehicle. Subsequently, the car was taken from appellee by a detinue action. Appellee was also sued by the Citizens Bank for failure to repay the $1,200 borrowed to pay for the car. His credit there was destroyed.

Appellee stated that upon learning that the vehicle was stolen, he went to appellant and asked for the return of his money. His request was denied. Then there was a second request and another denial.

Appellant denied that he had sold the car in question to appellee, denied that Eakes had worked for him, and denied that appellee had asked for the return of his money.

Before considering the assignments of error, it is necessary to dispose of the motion to strike the amendment to the minute entry.

The record containing the jury verdict which reads: “We, the jury, find in favor of the plaintiff and against the defendant,” was filed in this court on September 20, 1971.

An “Amendment to Transcript of Record” was filed in this court on September 30, 1971. This purported amendment allegedly corrects the jury verdict to read: “Wc, the jury, find the issues in this case in favor of the Plaintiff and against the Defendant and assess Plaintiff’s damages at $8,000.”

There was no petition for Writ of Certiorari to correct the record filed in this court,, and for aught appearing, the clerk of the-trial court gratuitously filed an amendment, to the original minute entry.

Appellant says this is not the proper way to correct the record on appeal and cites us-to Rule 18, Supreme Court Rules, and Liberty National Life Ins. Co. v. Patterson, 278 Ala. 43, 175 So.2d 737.

Rule 18 provides:

“A certiorari to perfect or bring up a. complete record may be awarded, on motion of either party, at any time before-the submission of the cause, df its object, be to sustain a judgment, without a. showing; but to reverse a judgment, a. sufficient showing must be made.”

The amendment was, no doubt, for the-purpose of correcting the jury verdict so-that it would support the judgment entered' in pursuance thereof; hence no showing,, under these circumstances, would be required.

In the Patterson case, supra, we find the-following:

“If the transcript, certified by the clerk as being a true and correct copy of the-proceedings, is incorrect, or omits something, the remedy is to ask for a writ of certiorari to complete it. [Citations omitted.]' This is the only method by which this court can secure a properly certified and authenticated transcript.”' (Emphasis added.)

No petition requesting the issuance of a Writ of Certiorari to correct the record having been filed in this court, the purported “Amendment to the Record” is not before us and cannot be considered. Consequently, the motion to strike the amendment must be granted.

Appellant says that the judgment entered by the trial court awarding damages in the amount of $8,000 to appellee is not supported by the verdict.

The verdict of the jury does not award any damages, it merely decides the [637]*637issues in favor of appellee and against appellant.

In the case of Norrell v. Downes, 260 Ala. 181, 69 So.2d 873, the judgment entry gave the plaintiff $2,500 on the following verdict: “We, the jury, find for the plaintiff and against the defendant, Alvin Norrell.” The Supreme Court had this to say:

“The foregoing is the only reference in the entire record to the verdict of the jury . . . and is entirely inadequate to support the judgment. From the state of the record it appears the jury did not ascertain the amount of damages to which the appellee was entitled, but merely found the issues in favor of the appellee and against the appellant. The judgment, therefore, does not respond to the verdict of the jury in rendering judgment for the plaintiff and against the defendant in the amount of $2,500 and costs. ‘In the case of trial by a jury the judgment must rest or be predicated on the findings of the jury. Otherwise the judgment is invalid and will not support an appeal.’ [Citations omitted.]”

In the present case the record reflects that the jury failed to assess damages against appellant; hence the judgment awarding $8,000 in damages to appellee is unsupported by the verdict. Consequently the judgment is invalid.

On cross-examination, appellant, who had taken the stand in his own behalf, was asked if he had been indicted by the Grand Jury of Blount County for any offense. There was objection, but it was overruled.

Appellant says this evidence was inadmissible as an effort to impair his credibility as a witness.

A party in a civil case who takes the stand in his own behalf may be impeached by showing that he has been convicted of a crime involving moral turpitude. Parker v. Newman, 200 Ala. 103, 75 So. 479.

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Bluebook (online)
266 So. 2d 891, 48 Ala. App. 633, 1972 Ala. Civ. App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-lowe-alacivapp-1972.