Opinion
3 Div. 560.
April 27, 1922.
Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.
Leon G. Brooks, of Brewton, for appellants.
There was a discontinuance when the verdict was returned in favor of the original defendant, and there was no waiver by the other defendants of their right to move in arrest of judgment, as the question could not have been raised until after the verdict. Section 5367, Code 1907; Acts 1915, p. 605; 145 Ala. 617, 39 So. 576; 16 Ala. App. 608, 80 So. 682; 205 Ala. 210, 87 So. 203; 202 Ala. 62, 79 So. 456.
Hamilton, Page Caffey, of Brewton, for appellee.
(1) The record shows no judgment of the court on defendants' motion in arrest of judgment, and the appeal, therefore, should be dismissed. Morgan v. Flexner Lichten, 105 Ala. 356, 16 So. 716; Hall v. First Bank of Crossville, 196 Ala. 627, 72 So. 171; Moran v. State, 15 Ala. App. 379, 73 So. 748; Park v. Lide, 90 Ala. 246, 7 So. 805; Ferrell v. City of Opelika, 144 Ala. 135, 39 So. 249; Edwards v. Davenport, 11 Ala. App. 423, 66 So. 878.
(2) A motion in arrest of judgment must be made before the judgment is rendered. Hampton v. State, 133 Ala. 180, 32 So. 230; Ex parte Dean Jones, 154 Ala. 265, 45 So. 152; State v. Commercial Bank, 6 Smedes M. (Miss.) 218, 45 Am. Dec. 280; Hurt v. Ford, 142 Mo. 283, 44 S.W. 228, 41 L.R.A. 823; 15 R. C. L. pp. 608 and 662, pars. 47 and 134; 2 Ency. Pl. Pr. 817; 23 Cyc. 833.
This appeal is upon the record, there being no bill of exceptions.
The only assignment of error is the action of the court in overruling the motion in arrest of the judgment, and the only reference as to any such action appears to be by way of memorandum indorsed on the motion itself to the effect that the motion was overruled. As we understand the record, there was not even a docket memorandum made, and no reference to the motion is found in the judgment of the court. The record therefore discloses no judgment whatever upon the motion, and the memorandum indorsed thereon would therefor neither support an appeal nor an assignment of error. Such is the effect of the holding in Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Park v. Lide, 90 Ala. 246, 7 So. 805; Ferrell v. City of Opelika, 144 Ala. 135, 39 So. 249; Hall v. First Bank of Crossville, 196 Ala. 627, 72 So. 171; Edwards v. Davenport, 11 Ala. App. 423, 66 So. 878.
Moreover, the record is entirely silent as to the date of the filing of this motion. It is a well-known rule that presumptions are indulged in favor of the ruling of the court below. The judgment was entered on March 9th. The date indorsed thereon of the memorandum herein referred to is of March 15th. In this condition of the record, it must be presumed that the motion was presented after the rendition of the judgment. Motions in arrest of judgment should properly be presented after the verdict and before the judgment. Hampton v. State, 133 Ala. 180, 32 So. 230; 15 R. C. L. 608; State of Miss. v. Comm. Bank, 6 Smedes M. (Miss.) 218, 45 Am. Dec. 280. See, also, Slocumb v. N.Y. Life Ins. Co., 228 U.S. 364, 33 Sup. Ct. 523, 57 L.Ed. 879, Ann. Cas. 1914D, 1029.
It results the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.