Opinion
6 Div. 411.
October 5, 1933.
Certiorari to Court of Appeals.
Petition of R. L. Hereford for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Birmingham Electric Co. v. R. L. Hereford, 25 Ala. App. 465, 149 So. 862.
Writ denied.
H. M. Abercrombie and Jarrett Abercrombie, both of Birmingham, for petitioner.
A party surprised by evidence introduced during the progress of the trial cannot speculate on favorable result, then urge surprise and newly discovered evidence as a ground for new trial. Aldridge v. Tully P. H. Co., 216 Ala. 567, 114 So. 130; L. N. R. Co. v. Church, 155 Ala. 389, 46 So. 457, 130 Am. St. Rep. 29; Mutual B. L. A. v. Watson, 226 Ala. 526, 147 So. 817.
Lange, Simpson Brantley, of Birmingham, opposed.
The statement in the opinion of the Court of Appeals, that the newly discovered evidence meets all the requirements necessary to cause a new trial to be granted, is to be interpreted as a statement of fact, that all legal conditions required by the law of Alabama have been met to the satisfaction of the court; and such conclusion on the question of fact is binding on the Supreme Court and will not be disturbed. Ex parte Shoaf, 186 Ala. 394, 64 So. 615. The Supreme Court will not review the Court of Appeals on finding of fact. Pearson v. Hancock, 201 Ala. 428, 78 So. 806; Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Ex parte Priester, 212 Ala. 271, 102 So. 376; Kirkwood v. State, 184 Ala. 9, 63 So. 990.
The opinion of the Court of Appeals is to be construed as containing, without a discussion of the proof, the conclusion of that court from the facts in the record that the newly discovered evidence meets all the requirements of our decisions. So considered, there is nothing in the opinion that may be properly interpreted as running counter to the rule of our decisions, which prohibits a party from speculating upon the result of a trial and then become surprised at the result. Mutual B. L. Ass'n v. Watson, 226 Ala. 526, 147 So. 817; Aldridge v. Tully Plumbing Heating Co., 216 Ala. 567, 114 So. 130, and authorities cited. A contrary holding would necessitate a review of the Court of Appeals on the facts, which is not warranted by our decisions. Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Ex parte Shoaf, 186 Ala. 394, 64 So. 615; Ex parte Priester, 212 Ala. 271, 102 So. 376, Pearson v. Hancock Son, 201 Ala. 428, 78 So. 806; Kirkwood v. State, 184 Ala. 9, 63 So. 990; Folmar v. State, 217 Ala. 410, 116 So. 112.
Let the writ be denied.
Writ denied.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.