Moneagle & Co. v. Livingston

43 So. 840, 150 Ala. 562, 1907 Ala. LEXIS 449

Opinion

HARALSON, J.

An original suit was instituted be■fore R. J. Jordan, a justice of the peace, for $100 as damages, for the breach of the condition of a garnishment bond payable to the plaintiff, Gilbert 13. Livingston, by the defendants, William Moneagle and D. W. Partridge as partners under the name of Moneagle & Go., and L. W. Coleman. The suit in which the garnishment bond was given, was instituted before J. O. Sims, a justice of the peace, by Moneagle & Co., against the plaintiff, Livingston, and a judgment was rendered against him for $52 and costs, and against the garnishees, Barnes & Co., for $8.25 and costs. There was a judgment in favor of plaintiff against Moneagle & Go., and the individuals composing the firm, for $54 and costs. The case was appealed to the circuit court, where, at a special term of the court in July, 1903, the cause was tried, resulting in a verdict and judgment against the defendants for $100. On the 17th of July, 1906, the defendants filed a motion for a new trial, upon the ground, that the judgment “was rendered contrary to the law and evidence in said cause,” which motion was, on the 3d day of August, 1906, overruled. A hill of exceptions was taken in the cause. The court, at the request of the defendants, gave the general affirmative charge in their favor, hut the jury rendered a verdict in favor of the plaintiff for $100, and a judgment was rendered accordingly, to which ruling the defendants excepted, which was the only exception reserved.

On the trial of this motion, as we have before stated, and as is stated in the bill of exceptions, the defendants asked, “'that the verdict and judgment be set aside upon the ground that the verdict recovered was contrary to the km and evidence in said cause.” (Italics ours.) The grounds of the motion, it will be observed, were two: (1) That the verdict was contrary to the law; and (2) that it was contrary to the evidence.

In Cobb v. Malone, 92 Ala. 633, 9 South. 738, it was said, that when the ground of the motion is the insufficiency of the evidence to sustain the verdict, the substance of the evidence being reduced to writing, a general assignment is sufficient. “But when the reason is given, that the verdict is contrary to law, or that errors of law occurred during the trial,.a general assignment-will be disregarded; the respect in which the verdict is contrary to law, or the errors of law complained of, should be specified, so as to direct the court’s attention to the alleged erroneous ruling.” To the same effect are Winter v. Judkins, 106 Ala. 259, 17 South. 627, and Ard v. Crittenden, (Ala.) 39 South. 676.

So the ground of the motion that the verdict was contrary to the law cannot be considered. In respect to the other ground of the motion, that the verdict was contrary to the evidence, we are of the opinion that the evidence does not support the verdict and that the court erred in not setting it aside.

In respect to the insistence that the hill of exceptions fails to show that any evidence was introduced on the hearing of the motion, the statute does not require that the evidence upon which the case was tried shall be reintroduced, the presumption being that it is in the breast of the court. — Code 1896, § 434. Nor is there any merit in the contention that the motion Avas not in Avriting, nor shewn by the bill of exceptions.

The cause is reversed and a judgment will lie here rendered granting a new trial.

Reversed and rendered.

Tyson, C. J., and Simpson and Denson, JJ., concur.