Prater v. Prater , 244 Ala. 136 ( 1943 )

Appellant, who was plaintiff in the court below, recovered a judgment against appellees. The record proper shows this judgment, and also a motion by defendants for a new trial, and the judgment of the court granting the motion. The granting of this motion is the only error assigned.

There is no bill of exceptions and the motion for new trial is predicated on matters not of record, and therefore could only be presented for review by this court by bill of exceptions. There being no bill of exceptions in this cause we cannot review the action of the trial court in granting defendants' motion for new trial.

The field of operation of Sections 214 and 764 of Title 7, Code of 1940, is defined in the recent case of Delbridge v. State, 242 Ala. 677, 8 So. 2d 160. It was there stated: "The result is that when a motion for a new trial is based on the status of the record as shown on its face, section 214, Title 7, Code of 1940, shall have application, and a bill of exceptions shall not be necessary as required by section 764, supra, unless the motion is based on matter extraneous to the record, and which is properly presented by a bill of exceptions to get it into the record. We adopt that as the proper interpretation of the statutes as they appear in the Code of 1940."

The judgment is affirmed.

Affirmed.

GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.