Opinion
6 Div. 42.
April 8, 1920. Rehearing Denied November 18, 1920.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwynn, Judge.
Pinkney Scott, of Bessemer, for appellant.
Counsel discuss the errors assigned; but, in view of the prevailing opinion, the authorities are not here set out.
Tillman, Bradley Morrow, of Birmingham, and Huey Welch, of Bessemer, for appellee.
Counsel discuss errors assigned on the original submission, but on rehearing they insist cross-appeal was not properly taken and that the questions presented have become moot.
The previous appeal of this with a companion cause is reported in 202 Ala. 640, 81 So. 582-584. In response to defendant's motion for a new trial — containing a ground that the amount of the verdict (i. e., $500) was excessive, and manifested passion, prejudice, etc. — the court made this order:
"September 11, 1919, judgment for damages and unlawful detention of property sued for reduced to $150.00 in the case of Jesse Johnson against the defendant and motion to set aside verdict and judgment overruled."
The plaintiff (appellant) not only did not consent to this reduction, but "excepted" to the action thus taken. The trial courts in this state are without power or authority to reduce the amount of a verdict — with a view to removing the part that is excessive — unless the plaintiff, on hearing of defendant's motion for new trial taking the objection that the amount of the verdict is excessive, offers to remit the excess, definitely stated, or accepts the tender of the court to overrule the motion if the excess, definitely stated, is remitted by the plaintiff. Montgomery Traction Co. v. Knabe, 158 Ala. 458, 468, 48 So. 501; Richardson v. B'ham Cotton Co., 116 Ala. 381, 384, 22 So. 478. The basis of this wholesome practice is, manifestly, the "consent of the plaintiff" to the reduction of the amount of the verdict to the extent that it may be purged of its prejudicial, erroneous quality. In the Act approved September 17, 1915 (Gen. Acts, p. 610) a like practice on appeal is prescribed. Unless a plaintiff consents to a reduction of a verdict, or enters a remittitur, before a motion for new trial complaining that the verdict is excessive is disposed of by the trial court, the only power, in this regard, the trial court has is to grant or overrule the motion.
The order quoted above is affected with error. It is reversed, with direction to the trial court again to hear and pass upon grounds 63 to 66, inclusive, of the motion for new trial.
Reversed and remanded with directions.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.
The main appeal in this case (L. N. R. R. Co. v. Johnson) having been subsequently reversed and remanded on the authority of L. N. R. R. Co. v. James, 86 So. 906, decided by the Supreme Court, the subject of this cross-appeal by Johnson has become moot; and this cross-appeal (improperly brought up by separate transcript, Sup. Ct. Rule 3, Code, p. 1507) is therefore dismissed.
Ante, p. 604.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.