Southern Railway Co. v. Nelson

(On Rehearing.)

— Weakley, C. J., and Haralson, Simpson, and Anderson,

are of the opinion that the verdict is so -contrary to the great preponderance of the evidence and to the reasonable and natural inferences to be drawn therefrom that they are unwilling to affirm the judgment, and accordingly hold that a new trial should have been granted.

Tyson, Dowdell, and Denson, JJ.,

adhere to the original opinion, and hold that the motion for a new trial was properly overruled.

Reversed and remanded.

WEAKLEY, C. J.— The appellee has applied for a rehearing upon the ground that this court is without jurisdiction to review the action of the circuit court in over*92ruling the motion for a new trial; and this contention rests upon the fact that no formal judgment of the cir-cuí,t court overruling the motion appears either in the bill of exceptions or record proper. We have held in several cases, where an appeal purports to be taken from a judgment granting a motion for a new trial, that such judgment must appear in the record proper; otherwise there is nothing to support the appeal. Where, however, as in this case, an appeal is taken from the judgment on the verdict of the jury, and the bill of exceptions shows a motion for a new trial, the overruling of such motion, and an exception reserved to the action of the court, there is a judgment to support the appeal; and. on the appeal from the judgment on the verdict the ruling of the lower court denying a new trial may be reviewed, without any formal order or judgment in the bill of exceptions or otherwise.—Wilk v. Key, Simmons & Co., 117 Ala. 285, 23 South. 6, Code 1896, § 434.

Application for rehearing overruled.

All the Justices concur.