Opinion
6 Div. 529.
October 15, 1925.
Matthews Morrow, of Birmingham, for appellant.
It was not necessary that the motion for new trial be set out in the bill of exceptions. Acts 1925, p. 598; Powell v. Folmar, 201 Ala. 271, 78 So. 47; Newman v. Morgan, 202 Ala. 606, 81 So. 548; Nat. Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660.
Cabaniss, Johnston, Cocke Cabaniss, of Birmingham, for appellee.
Brief of counsel did not reach the Reporter.
In bringing up for review the ruling of the lower court overruling a motion for new trial, it is not required that the motion and judgment thereon, if found in the record proper, be set out in the bill of exceptions, but the bill of exceptions must contain a sufficient recital to show the making of such motion, the ruling thereon, and an exception thereto. Code 1923, § 6088; Powell v. Folmar, 201 Ala. 271, 78 So. 47; Pacific Fire Ins. Co. v. Burnett, 212 Ala. 287, 102 So. 214; Stover v. State, 204 Ala. 311, 85 So. 393; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548.
In so far as the opinion of the Court of Appeals holds that the motion and judgment thereon, which appear in the record proper, must appear in the bill of exceptions, it is out of harmony with the established rule. There is a misleading dictum to like effect in Birmingham Waterworks Co. v. Justice, 204 Ala. 547, 86 So. 389.
The bill of exceptions in the present case makes no mention of a motion for new trial, any ruling thereon, or exception thereto. It follows that the result of the decision of the Court of Appeals is correct.
Writ denied.
SOMERVILLE, THOMAS, and MILLER, JJ., concur.