Dillard v. Savage

STONE, C. J. The present case is one in which a new trial was granted. By rules of practice adopted and prevailing in the Circuit Court of Mobile county, Mondays are set apart as motion days; and when the motion is for a new trial, “at least one entire day’s notice shall be given to the opposite party, or his attorney.” The motion was set for Monday, June 6, 1892, and the notice of the motion was served on counsel Saturday, June 4. The motion was heard and granted on Monday, defendants’ counsel not appearing. It is claimed that as the intervening day was Sunday — dies non juridicus- — there was a failure to give one entire day’s notice, and that the order granting a new trial must be set aside for that reason.—Robertson v. State, 43 Ala. 325. [599] Tbe only exception reserved to tbe action of tbe court was in tbe following language : “On Monday, June 13, 1892, said attorneys appeared in open court, and excepted to tbe action of tbe court in granting said motion, and in setting aside said verdict.” Tbe only error assigned is, that “Tbe court erred in tbe order and judgment of June 6, 1892, by setting aside tbe verdict of tbe jury in said cause, and by granting to tbe plaintiff a new trial of said cause.” Exceptions, to avail in this court, must be specific; must so specify the point of objection as to direct attention to tbe error complained of.- — 3 Brick. Dig. ’80, §§ 33 et seq. But this principle must not be extended too far. If tbe exception presents tbe point of objection so as to be readily understood, this is enough. We are simply following an established rule, not declaring a new one. We think the exception reserved in this case, and tbe error assigned, only question tbe propriety of tbe order granting tbe new trial, and do not raise tbe inquiry of the time when it was beard, or tbe sufficiency of tbe notice. Tbe presiding judge beard the testimony of tbe witnesses, observing their manner, and bad better opportunities for pronouncing on its weight and convincing power than we can have. He was possibly dissatisfied with some parts of tbe instructions be bad given tbe jury. We can not know tbe motives which influenced him farther than tbe order be granted indicates them. Tbe evidence set out in tbe bill of exceptions does not so “plainly and palpably support tbe verdict,” as to call for, or justify a reversal of bis order granting a new trial.—Cobb v. Malone, 92 Ala. 630; White v. Blair, 95 Ala. 147; City of Mobile v. Murphree, 96 Ala, 141 Affirmed.