Kreamer v. Jackson L. Co.

SOMERVILLE, J. Appellant, who was plaintiff in the court below, recovered a judgment against appellee. The record proper shows this judgment, and also a motion by defendant for a new trial, and the judgment of the court granting the motion. The granting of this motion is the only error assigned. Appellant files her attorney’s affidavit, averring that she prepared and tendei’ed to the trial judge, within the time prescribed by law, a correct bill of exceptions, Avhich he refused to sign; and she makes seasonable application to this court for the establishment of her bill of exceptions. The appeal is submitted on motion to establish the bill, and also on the merits. A copy of the bill of exceptions as tendered to the trial judge is attached as an exhibit to the affidavit and motion. It does not contain .the motion for neAV trial, nor the judgment of the trial court thereon'. After stating the evidence given on the trial, it does, however, contain the following recital: “The court refused the general affirmative charge, which was duly requested by the defendant in writing, delivered a general charge to the jury, and a verdict was rendered for the plaintiff. Thereupon the defendant made the following motion: [Set out the motion exactly, together with the judgment and order of the court thereon.] The plaintiff resisted said motion, and to the granting of same, and the action of the court in setting aside the verdict of the jury, the plaintiff duly and legally excepted.” It is well settled that a motion for new trial is not part of the record proper, and the judgment [227] thereon cannot be reviewed on appeal, unless presented by a bill of exceptions. — Milner C. & R. R. Co. v. Wiggins, 143 Ala. 132, 38 South. 1010. The bill of exceptions here exhibited being incomplete without the incorporation of the motion and judgment, the trial judge was not bound to sign it in that condition. 'Nor can it be established here by reference to the record proper, which we cannot consider for that purpose. The recital above quoted from the tendered bill of ex-céptions does not sufficiently describe the motion or the judgment, the incorporation of which is enjoined upon some unnamed person, to make it a part of the bill, in such sense as to dispense with its actual incorporation. — Garlington v. Jones, 37 Ala. 240; Pearce v. Clements, 73 Ala. 256; Anniston Mfg. Co. v. Southern Ry. Co., 145 Ala. 351, 40 South. 965. It results that appellant’s motion to establish the bill of exceptions must be overruled; and, no error being assigned on the record proper, the judgment of the circuit court will be affirmed. Affirmed. All the Justices concur.