McWhorter v. Haigler Mercantile Co.

Alabama Court of Appeals

McWhorter v. Haigler Mercantile Co.

58 So. 790, 4 Ala. App. 296, 1912 Ala. App. LEXIS 306

CourtAlabama Court of Appeals

DecidedApril 9, 1912

StatusPublished

Cited by3 cases

This text of 58 So. 790 (McWhorter v. Haigler Mercantile Co.) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McWhorter v. Haigler Mercantile Co., 58 So. 790, 4 Ala. App. 296, 1912 Ala. App. LEXIS 306 (Ala. Ct. App. 1912).

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Opinions

WALKER, P. J.

The appeal is from an order or judgment of the court overruling the motion of the defendants for a new trial. It is urged in argument that the motion should have been granted because of a variance between the allegations of the complaint and the evidence offered in support of them, in that-the complaint counted on joint causes of action against the defendants, while the evidence offered in support of it was as to a several cause of action against one of them alone. The court was forbidden by statute (Code, § 5362) to charge upon the effect of the testimony, unless required to do so by one of the parties. The defendants did not request such charge, but permitted the evidence to go to the jury without objection. In no way was the question, of a variance called to the attention of the trial court. It was not even raised in the motion for a new trial, conceding that it would have been in time if then first suggested. In now urging that a new trial should have been granted because of the alleged variance, the appellants are suggesting a ground for setting aside the result of the trial which might not have existed but for their own failure to avail themselves of the opportunity to present the question before the case went to the jury. A party is not entitled to another trial to enable him to [298]*298present a question which he had full opportunity to present in the trial already had, especially when no excuse is shown for his failure to raise the question at the proper time. Such an objection is not available on appeal when it was not in some appropriate way plainly brought to the attention of the trial court. If it had been made at the proper time, it might have been obviated by an amendment of the complaint.—Odom, as Ex., v. Moore, 147 Ala. 567, 41 South. 162; Flint v. Clark, 13 Conn. 361; 29 Cyc. 793; 22 Ency. of Pleading & Practice, 629, 639.

The ground of the motion suggesting newly discovered evidence was not sustained. The showing made was as to what one Troy would depose to in reference to a transaction to which one of the defendants was a party, and which, in part at least, was in his presence. It is not made to appear that before the trial the defendants were uninformed as to what testimony might be expected from the proposed witness, or that they made any effort to procure his attendance.—McLeod v. Shelly Manufacturing & Imp. Co., 108 Ala. 81, 19 South. 326.

The remaining ground of the motion was “because the jury considered evidence that was not offered in the trial of the case.” In the trial the defendants offered in evidence an account against the plaintiff as entered on page 278 of a ledger. The plaintiff offered evidence tending to show that the articles charged on that account were bought, not by the plaintiff, but by one W. T. Brightman. For the purpose of supporting an inference that the jury considered evidence that was not offered in the trial, the defendants offered in evidence this pencil mmorandum, “W. T. B. a/c 178,” found immediately below the account on page 278 of the ledger, an account against W. T. Brightman on page 178 of the [299]*299same ledger, and an affidavit of one of the defendants, sworn to on March 1, 1911, in which it was stated that the above-mentioned memorandum was not on page 278 of the ledger when the account entered on that page was offered in evidence, and “that said memorandum was not made by either of the defendants or by their direction, but that he found it on the book after the jury returned their verdict.” On this showing the court was asked to conclude that the jury improperly considered the W. T. Brightman account, found on page 178 of the ledger, in making their verdict, though that account had not been offered in evidence. The court might well have failed to reach this conclusion from the evidence offered. The verdict was rendered on February 23d. The evidence did not show by whom the memorandum in question was made, or that it was made before the book went into the hands of the jury, or that it had been made when the verdict was rendered. Nor was it shown how long before March 1st the discovery was made, or in whose custody the book had been since it left the hands of the jury. In this condition of the evidence, and in view of the fact that there was evidence in the case to support a finding that the account entered on the book against the plaintiff was not owing by it, it cannot be said that it was satisfactorily proved that the jury considered evidence that was not offered in the trial. Mere conjecture or surmise would have to be resorted to in reaching the conclusion that the jury ever saw the memorandum and that if they did see it they were led thereby to find and consider another account which had not been offered in evidence.

It has not been made to appear that the court was in error in overruling the motion for a new trial.

Affirmed.

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WALKER, P. J.

The appeal is from an order or judgment of the court overruling the motion of the defendants for a new trial. It is urged in argument that the motion should have been granted because of a variance between the allegations of the complaint and the evidence offered in support of them, in that-the complaint counted on joint causes of action against the defendants, while the evidence offered in support of it was as to a several cause of action against one of them alone. The court was forbidden by statute (Code, § 5362) to charge upon the effect of the testimony, unless required to do so by one of the parties. The defendants did not request such charge, but permitted the evidence to go to the jury without objection. In no way was the question, of a variance called to the attention of the trial court. It was not even raised in the motion for a new trial, conceding that it would have been in time if then first suggested. In now urging that a new trial should have been granted because of the alleged variance, the appellants are suggesting a ground for setting aside the result of the trial which might not have existed but for their own failure to avail themselves of the opportunity to present the question before the case went to the jury. A party is not entitled to another trial to enable him to [298]*298present a question which he had full opportunity to present in the trial already had, especially when no excuse is shown for his failure to raise the question at the proper time. Such an objection is not available on appeal when it was not in some appropriate way plainly brought to the attention of the trial court. If it had been made at the proper time, it might have been obviated by an amendment of the complaint.—Odom, as Ex., v. Moore, 147 Ala. 567, 41 South. 162; Flint v. Clark, 13 Conn. 361; 29 Cyc. 793; 22 Ency. of Pleading & Practice, 629, 639.

The ground of the motion suggesting newly discovered evidence was not sustained. The showing made was as to what one Troy would depose to in reference to a transaction to which one of the defendants was a party, and which, in part at least, was in his presence. It is not made to appear that before the trial the defendants were uninformed as to what testimony might be expected from the proposed witness, or that they made any effort to procure his attendance.—McLeod v. Shelly Manufacturing & Imp. Co., 108 Ala. 81, 19 South. 326.

The remaining ground of the motion was “because the jury considered evidence that was not offered in the trial of the case.” In the trial the defendants offered in evidence an account against the plaintiff as entered on page 278 of a ledger. The plaintiff offered evidence tending to show that the articles charged on that account were bought, not by the plaintiff, but by one W. T. Brightman. For the purpose of supporting an inference that the jury considered evidence that was not offered in the trial, the defendants offered in evidence this pencil mmorandum, “W. T. B. a/c 178,” found immediately below the account on page 278 of the ledger, an account against W. T. Brightman on page 178 of the [299]*299same ledger, and an affidavit of one of the defendants, sworn to on March 1, 1911, in which it was stated that the above-mentioned memorandum was not on page 278 of the ledger when the account entered on that page was offered in evidence, and “that said memorandum was not made by either of the defendants or by their direction, but that he found it on the book after the jury returned their verdict.” On this showing the court was asked to conclude that the jury improperly considered the W. T. Brightman account, found on page 178 of the ledger, in making their verdict, though that account had not been offered in evidence. The court might well have failed to reach this conclusion from the evidence offered. The verdict was rendered on February 23d. The evidence did not show by whom the memorandum in question was made, or that it was made before the book went into the hands of the jury, or that it had been made when the verdict was rendered. Nor was it shown how long before March 1st the discovery was made, or in whose custody the book had been since it left the hands of the jury. In this condition of the evidence, and in view of the fact that there was evidence in the case to support a finding that the account entered on the book against the plaintiff was not owing by it, it cannot be said that it was satisfactorily proved that the jury considered evidence that was not offered in the trial. Mere conjecture or surmise would have to be resorted to in reaching the conclusion that the jury ever saw the memorandum and that if they did see it they were led thereby to find and consider another account which had not been offered in evidence.

It has not been made to appear that the court was in error in overruling the motion for a new trial.

Affirmed.

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58 So. 790, 4 Ala. App. 296, 1912 Ala. App. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcwhorter-v-haigler-mercantile-co-alactapp-1912.

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