Central of Georgia Railway Co. v. Ashley

DOWDELL, C. J. The judgment shows that the complaint was amended, and that the demurrer to- the complaint as amended was overruled. This is the only ruling on demurrers shown by the record. It does not appear what the demurrer was to’ the complaint after amendment. When demurrers are filed to pleadings, and before action on the demurrers the pleadings are subsequently amended, in order to have the benefit of the demurrers, the same should be reinterposed to the pleadings as amended. The record not showing what the demurrer was to- the amended complaint, we cannot review the action of the court in overruling the same. For aught that we can tell the demurrer was general. What purports to be a bill of exceptions in the trans-script was not signed within 30 days after the trial of the cause, nor within a time fixed by any valid order of •extension, as required by the practice act for the city court of Montgomery. — Acts 1900-01, p. 830, § 10. The motion to strike the bill must therefore prevail. — Arnett v. Western Railway of Alabama, 39 South. 775; Western Railway of Alabama v. Russell, 144 Ala. 142, 39 South. 311. While the bill of exceptions may not, for the reasons above stated, be looked to and considered in respect to rulings of the court on questions arising on the main [583] trial, still it may be considered in reference to tbe action of the trial court in overruling the motion for a new trial, since the bill was signed within a time fixed by a valid order of the presiding judge, made within 30 days of the-ruling on said motion as authorized by the practice act above cited. The refusal of the court to give certain written charges requested by the defendant is, among other things, made ground of motion for a new trial. The writer is of the opinion that this is a matter which should be presented for review on appeal, by a legal bill of exceptions taken on the main trial, and not on a motion for a new trial. I say this because to permit such a practice enables a party to evade the requirements of the statute as to the manner and time of taking bills of exceptions on the trial of causes. Indeed, it operates, in my opinion, to emasculate the statute as to the time of signing bills of exceptions reserved on the trial. Unless an exception is legally reserved to the giving or the refusal of a charge, the ruling of the court cannot be subsequently made a ground of motion for a new trial, to the end of reviewing the court’s action on appeal. — Stewart v. Guy, 138 Ala. 176, 34 South. 1007; McLendon v. Bush, 127 Ala. 470, 9 South. 56; Tobias v. Triest, 103 Ala. 665, 15 South. 914. I am aware, however, that there are cases of ours in which the practice has been permitted; but, be that as it may, in the present case the charges which counsel for appellant urge in argument as having been erroneously refused to the defendant, and which were set out in the motion for a new trial, were general charges in favor of the defendant. A review of the evidence had on the trial, and which is set out in the bill of exceptions, discloses material conflicts in the testimony of witnesses. In such a case it is never proper for the court to give the general affirmative charge. [584] In regard to tlie newly discovered evidence, which is made a ground of the motion for a new trial, requisite dilligence on the part of the defendant is not shown against its failure to produce the evidence on the trial. Moreover, if the defendant was surprised by the testimony of plaintiff, the proper course was to apply for a continuance. — Simpson v. Golden, 144 Ala. 336, 21 South. 990. The verdict .was neither opposed to the charge of the court, nor contrary to the evidence.. Nor do we think, under all the circumstances, if the jury believed the evidence of the plaintiff (and apparently they did), that the verdict was excessive. What was said in the case of Central of Georgia Railway Company v. F. E. Ashley, 159 Ala. 145, 48 South. 981, on this question, is apposite here. It follows from what we have said that the judgment appealed from must be affirmed. Affirmed. Anderson, McClellan, and Mayfield, JJ., concur.