OLDEMOPPEN v. WALTHER BUILDERS, 402 So.2d 884 (Ala. 1981)

402 So.2d 884

Lawrence OLDEMOPPEN, and Margeret F. Oldemoppen, jointly and severally v. WALTHER BUILDERS, A Corporation, and William C. Walther, individually, jointly and severally.

80-215.Supreme Court of Alabama.
June 19, 1981. Rehearing Denied July 24, 1981.

Appeal from Circuit Court, Baldwin County; Harry J. Wilters, Jr., Judge.

Charles C. Partin of Stone, Partin, Granade Crosby, Bay Minette, for appellants.

No brief for appellees.

PER CURIAM.

Affirmed. The adequacy of damages vel non assessed by a jury verdict and judgment entered thereon is not an available ground for relief under Rule 60 (b), ARCP; thus, this post-judgment remedy may not be substituted for a motion for a new trial.

AFFIRMED.

MADDOX, JONES, and SHORES, JJ., concur.

TORBERT, C.J., and BEATTY, J., concur specially.

TORBERT, Chief Justice (concurring specially).

Plaintiffs prevailed at trial, but were dissatisfied with the damages awarded. They did not file a timely motion for new trial; instead, they filed a Rule 60 (b) motion alleging the inadequacy of the damages awarded. The motion was denied, and plaintiffs appealed from the judgment and from the denial of the 60 (b) motion.

I concur in the view that the judgment must be affirmed because a Rule 60 (b) motion cannot be substituted for a motion for new trial. Additionally, I note that where inadequacy of damages is claimed, appeal cannot be taken from the judgment. The matter must be presented to the trial court by way of a motion for new trial, which, if denied, becomes the basis for appeal. See, McGough v. Slaughter, 395 So.2d 972 (Ala. 1981). Since plaintiffs did not raise the issue of inadequacy of damages in a motion for new trial, the issue is not properly before us.

BEATTY, J., concurs.