Dollahite-Levy Co. v. Overton

Full title: DOLLAHITE-LEVY CO. v. OVERTON

Court: Court of Appeals of Alabama

Date published: Apr 18, 1933

147 So. 689 (Ala. Crim. App. 1933)

147 So. 689

Opinion

6 Div. 247.

April 18, 1933.

Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.

Action by the Dollahite-Levy Company against F. L. Overton. From the judgment, plaintiff appeals.

Affirmed.

Robt. E. Smith and Irvine C. Proter, both of Birmingham, for appellant.

H. A. Burns, of Birmingham, for appellee.

RICE, Judge.

This is the second appeal in this case. See Dollahite-Levy Co. v. Overton, 223 Ala. 12, 133 So. 903.

The law, governing, was sufficiently outlined by our Supreme Court — to which the case was transferred, under the statute (Code 1923, § 7326) upon the first appeal. Dollahite-Levy Co. v. Overton, supra.

So far as we can see the second trial was conducted in all essential respects in accordance with the law, as indicated above.

The learned trial judge's oral charge, in connection with the written charges given at appellee's request, stated to the jury correctly, in our opinion, the applicable rules of law.

We have inspected and examined the ruling underlying each assignment of error properly argued here; and we are of the opinion that, as to each of said rulings other than that denying to appellant a new trial, etc., the verdict of the jury would not have been different had the ruling been changed to agree with appellant's contention. So, for none of such would the judgment be reversed. Supreme Court Rule 45.

And we are further of the opinion that the evidence made, in the first instance, a case for the jury; and more, that it was sufficient to support the verdict returned.

But while what is said hereinabove states our views, we are not called upon to actually base our disposition of this appeal thereon.

The brief filed here upon behalf of appellant — rather, a copy thereof — is not shown to have been served upon appellee's counsel, in accordance with Supreme Court Rule 13. That being the case, same cannot be considered; with the result that, nothing being presented for our decision, the judgment appealed from will be, and is, affirmed. First Natl. Life Ins. Co., etc., v. Swindle, ante, p. 289, 145 So. 173.

Affirmed.