Sanford v. Life Casualty Ins. Co. of Tennessee

Alabama Court of Appeals

Sanford v. Life Casualty Ins. Co. of Tennessee

156 So. 858, 26 Ala. App. 197, 1934 Ala. App. LEXIS 98

CourtAlabama Court of Appeals

DecidedJune 12, 1934

Docket8 Div. 949.

StatusPublished

Cited by1 cases

This text of 156 So. 858 (Sanford v. Life Casualty Ins. Co. of Tennessee) 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.

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Sanford v. Life Casualty Ins. Co. of Tennessee, 156 So. 858, 26 Ala. App. 197, 1934 Ala. App. LEXIS 98 (Ala. Ct. App. 1934).

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Opinion

BRICKEN, Presiding Judge.

The record contains two assignments of error, each relating to the granting of appellee’s motion for a new trial, from which the appeal is taken under section 6088 of the Code.

The only ruling on the motion for a new trial, shown by the record proper, and entitled, “Judgment on Motion,” is that upon submission of the motion: “To and being duly considered and understood by the court, it is thereupon considered, ordered and adjudged that the defendant’s said motion be and the same is hereby sustained.”

*198 The bill of exceptions says that the motion for a new trial' “was thereupon sustained and the jury’s verdict set aside and vacated and a new trial of said cause ordered.” Recitals in the bill of exceptions cannot supplement the judgment, and render appealable a judgment otherwise insufficient for that purpose. Clements v. Hodgens, 210 Ala. 486, 98 So. 467. Randall v. Worthington, 141 Ala. 497, 37 So. 594. So the question remains: Does an order that motion for a new tz-ial be “sustained” show a judgment “granting” the -same? We think this question is foreclosed by Irby v. Kaigler, 6 Ala. App. 91, 60 So. 418; Stokes v. Hinton, 197 Ala. 230, 72 So. 503; Chambers v. Morris, 144 Ala. 626, 39 So. 375, holding a formal adjudication essential to accomplish the vacating and setting aside of the verdict and judgment. An adjudication that a motiozz be sustained is in no sense the equivalent of granting the same, and far short of setting aside a verdict and judgment.

The insufficiency of the judgment shown by the record proper, to support an appeal, is jurisdictional, and it necessarily follows that the appeal must be dismissed, although the parties should consent to and insist upon a review of the case by this court. Meyers v. Martinez, 162 Ala. 562, 50 So. 351; W. K. Syson Timber Company v. State, 23 Ala. App. 261, 123 So. 293.

Appeal dismissed.

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BRICKEN, Presiding Judge.

The record contains two assignments of error, each relating to the granting of appellee’s motion for a new trial, from which the appeal is taken under section 6088 of the Code.

The only ruling on the motion for a new trial, shown by the record proper, and entitled, “Judgment on Motion,” is that upon submission of the motion: “To and being duly considered and understood by the court, it is thereupon considered, ordered and adjudged that the defendant’s said motion be and the same is hereby sustained.”

*198 The bill of exceptions says that the motion for a new trial' “was thereupon sustained and the jury’s verdict set aside and vacated and a new trial of said cause ordered.” Recitals in the bill of exceptions cannot supplement the judgment, and render appealable a judgment otherwise insufficient for that purpose. Clements v. Hodgens, 210 Ala. 486, 98 So. 467. Randall v. Worthington, 141 Ala. 497, 37 So. 594. So the question remains: Does an order that motion for a new tz-ial be “sustained” show a judgment “granting” the -same? We think this question is foreclosed by Irby v. Kaigler, 6 Ala. App. 91, 60 So. 418; Stokes v. Hinton, 197 Ala. 230, 72 So. 503; Chambers v. Morris, 144 Ala. 626, 39 So. 375, holding a formal adjudication essential to accomplish the vacating and setting aside of the verdict and judgment. An adjudication that a motiozz be sustained is in no sense the equivalent of granting the same, and far short of setting aside a verdict and judgment.

The insufficiency of the judgment shown by the record proper, to support an appeal, is jurisdictional, and it necessarily follows that the appeal must be dismissed, although the parties should consent to and insist upon a review of the case by this court. Meyers v. Martinez, 162 Ala. 562, 50 So. 351; W. K. Syson Timber Company v. State, 23 Ala. App. 261, 123 So. 293.

Appeal dismissed.

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156 So. 858, 26 Ala. App. 197, 1934 Ala. App. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanford-v-life-casualty-ins-co-of-tennessee-alactapp-1934.

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