Opinion
6 Div. 351.
October 22, 1925. Rehearing Denied November 19, 1925.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
J. S. McLendon, of Birmingham, for appellant.
It was error to overrule defendant's motion for new trial. Fries v. Acme White Lead Color Wks., 201 Ala. 613, 79 So. 45. The court erred in its judgment on motion to retax costs. C. of Ga. R. Co. v. McGilvary, 16 Ala. App. 344, 77 So. 938. Other questions are discussed by counsel, but without citation of additional authorities.
Matthews Morrow, of Birmingham, for appellee.
Where a question requires an answer to two different facts, one of which is admissible, an objection to the whole question is properly overruled. Briel v. Exch. Nat. Bank, 180 Ala. 576, 61 So. 277; Adams v. Bibby, 194 Ala. 652, 69 So. 588; Long-Richardson Mer. Co. v. Herron, 3 Ala. App. 525, 57 So. 133; B. R., L. P. Co. v. Norton, 7 Ala. App. 571, 61 So. 459. On motion for new trial on the ground of newly discovered evidence, the burden is on the applicant to rebut the presumption that the verdict is correct and that there has been a lack of diligence. 20 R. C. L. 289, 290. A judgment will not be reversed for error as to costs. Randolph v. Rosser, 7 Port. (Ala.) 249; Bryan v. Bryan, 34 Ala. 516; Mobile Tr. Co. v. Mobile, 128 Ala. 335, 30 So. 645, 64 L.R.A. 333, 86 Am. St. Rep. 143; 3 Cent. Dig. Appeal and Error, § 4549; 1 Dec. Dig. vol. 2, § 1171 (3).
It was proper for plaintiff to testify that he knew Mr. White, claimed by defendant to have been the owner and possessor of the horse taken from defendant's possession under plaintiff's writ of detinue; but we can see neither relevancy nor propriety in his stating that Mr. White was known as a horse-swapper. However, both facts were called for by a single question in two distinct clauses. Defendant's objection should have been limited to the second branch of the question, and the trial court cannot be put in error for overruling the objection directed to the entire question, as we have often ruled. Briel v. Exch. Nat. Bank, 180 Ala. 576, 580, 61 So. 277; Adams v. Bibby, 194 Ala. 652, 69 So. 588.
In accordance with our previous rulings on this subject, we are constrained to hold that defendant's showing as to diligence was not sufficient to warrant the trial court in granting a new trial on the ground of newly discovered evidence.
The suit was filed on March 20, 1923, process was served on defendant on the next day, and the case was not tried until November 1, 1923. There is nothing to show that the four witnesses who were not subpœnaed could not have been discovered by defendant had he made diligent efforts to find persons who could identify the horse as having previously belonged to White and to Bennett and Duke. Nor does it even appear that any such efforts were made at all. A mere general assertion of diligence has been held to be an insufficient showing in that behalf. L. N. R. R. Co. v. Burke, 198 Ala. 99, 73 So. 416. A fortiori, a mere general assertion that reasonable diligence could not have discovered the evidence is likewise insufficient.
As to the other two proposed witnesses, White and Bennett, it appears that defendant directed the clerk to issue subpœnas for them, and that they were issued but were not served before the trial. Hence it cannot be claimed that they were new discoveries. So far as appears, defendant may have made no effort to have them subpœnaed in due time for the trial; and in any case, he was content to proceed to trial without their presence, and without any effort to have them brought in.
The question of costs, on a motion for their retaxation, does not affect the merits of the judgment, and the trial court's rulings thereon are not available for error to reverse the judgment. Mobile Transp. Co. v. City of Mobile, 128 Ala. 335 (15), 30 So. 645, 64 L.R.A. 333, 86 Am. St. Rep. 143.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.