Opinion
5 Div. 867.
December 20, 1923.
Appeal from Circuit Court, Chilton County; W. M. Lackey, Judge.
Thos. A. Curry, of Clanton, for appellant.
L. H. Ellis, of Columbiana, for appellee.
In view of the decision, it is not necessary that the briefs of respective counsel be here set out.
This is a suit for damages brought by G. W. Hodgens against W. R. Clements. There are several counts in the complaint. One claims for an assault and battery, another for an assault with intent to murder, and another for an assault and battery with a hoe. The defendant pleaded not guilty, and issue was joined thereon by plaintiff. The court gave the general affirmative charge with hypothesis in favor of the plaintiff, which was in writing and requested by the plaintiff. The jury returned a verdict in favor of the defendant, a regular judgment thereon in favor of the defendant was rendered by the court on March 30, 1923, and plaintiff was taxed by the court with the cost of the cause, and execution was directed to issue for it.
The plaintiff on the same day, March 30, 1923, filed a written motion to set aside the verdict of the jury, and to grant plaintiff a new trial on various grounds stated therein. This motion appears from the record to have been written on the motion docket. The attorney for defendant was served with a copy of the motion, and we find the following entry by the presiding judge thereon:
"Judges entries: March 31, 1923; motion granted and defendant excepts. W. M. Lackey, Presiding Judge."
This is the only mention made in the record proper as to the action of the court on the motion for new trial. This appeal is prosecuted by the defendant from that judgment. Is it a sufficient judgment of the court on the motion for new trial to support an appeal to this court under section 2846, Code 1907, as amended General Acts 1915, p. 722? We think it is not; the motion for a new trial is not granted by an order or judgment of the circuit court. There is no order or judgment of the court granting the motion, setting aside the verdict, and setting aside the judgment of the court thereon, and granting the plaintiff a new trial. There is no order or judgment of the court granting the motion for a new trial; this the statute requires before an appeal therefrom will lie to this court. Section 2846, Code 1907, amended Gen. Acts 1915, p. 722; Randall v. Worthington, 141 Ala. 497, 37 So. 594; Dees v. Lindsey Mills Co. (Ala. Sup.) 97 So. 647. For the definition of a judgment of a court, see Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am. St. Rep. 117; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525, and Speed v. Cocke, 57 Ala. 209.
Ante, p. 183.
This is not a judgment of the court on the motion for new trial, which will support an appeal therefrom by the defendant to this court. There must be such a judgment of the court or the appeal will, ex mero motu, be dismissed by this court. Meyers v. Mortinez, 162 Ala. 562, 50 So. 351; Lathrop Lumber Co. v. Pioneer Lumber Co., 207 Ala. 522, headnote 2, 93 So. 427; Martin v. Ala. Power Co., 208 Ala. 212, 94 So. 76.
The bill of exceptions states, after reciting the jury returned a verdict for the defendant:
"Thereupon plaintiff filed motion and spread same upon the motion docket, moving the court to set aside and vacate the verdict in this cause and grant to plaintiff a new trial in said cause. The court granted said motion, set aside the verdict, and granted plaintiff a new trial in said cause."
This statement and recital in the bill of exceptions is insufficient to present a judgment of the court on a motion for new trial for review, upon which an appeal can be based in this court. Randall v. Worthington, 141 Ala. 497, 37 So. 594; Dees v. Lindsey Mills Co., ante, p. 183, 97 So. 647, h. n. 2.
Let the appeal be dismissed.
Appeal dismissed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.