McWhorter v. Haigler Mercantile Co.
Alabama Court of Appeals
Appeal from Lowndes Circuit Court. Heard before Hon. A. E. Gamble. Action by tbe Haigler Mercantile Company against R. S. McWhorter and another. Judgment for plaintiff, and from an order overruling motion for a new trial, defendants appeal.
Read the full summary
Appeal from Lowndes Circuit Court. Heard before Hon. A. E. Gamble. Action by tbe Haigler Mercantile Company against R. S. McWhorter and another. Judgment for plaintiff, and from an order overruling motion for a new trial, defendants appeal. There ivas a variance between the complaint and the proof, and it was not upon the defendant to raise this in the lower court. —Jones v. Egelhart, 78 Ala. 505; Lee v. Wimberly, 102 Ala. 539; Gobbs v. Keith, 110 Ala. 614; Redmond v. L. cG N., 154 Ala. 311. Counsel insist that a new trial should have been granted op account of newly discovered evidence, and…
1Opinion of the CourtWalker, P. J.
The appeal is from an order or judgment of the court overruling the motion of the defendants for a new trial. It is urged in argument that the motion should have been granted because of a variance between the allegations of the complaint and the evidence offered in support of them, in that-the complaint counted on joint causes of action against the defendants, while the evidence offered in support of it was as to a several cause of action against one of them alone. The court was forbidden by statute (Code, § 5362) to charge upon the effect of the testimony, unless required to do so by one of…
2Cases cited3 opinions
- McLeod v. Shelly Manufacturing & Improvement Co.Supreme Court of Alabama · 1895
- Flint v. ClarkSupreme Court of Connecticut · 1839
- Odom v. MooreSupreme Court of Alabama · 1906
3Cited by3 opinions
- Rodgers v. WalkerAlabama Court of Appeals · 1921
- Rayburn v. CrockerAlabama Court of Appeals · 1944
- Sloss-Sheffield Steel & Iron Co. v. DeanAlabama Court of Appeals · 1919