Ray v. Watkins , 203 Ala. 683 ( 1920 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This decision must rest on a question of fact. As shown by the record, the witnesses were examined orally before the court. The judge had the benefit of observing the manner and general demeanor of the witnesses and the better opportunity to pass upon the credibility of the testimony. His finding has the force of a verdict of a jury. In Andrews v. Gray, 74 So. 62,¹ this court declared that section 5955 of the Code of 1907, subd. 1, providing that on chancery appeal no weight shall be given the chancellor's decision upon the facts, but the Supreme Court shall weigh the evidence, applies only where the judge trying the issue had not the advantage of seeing and hearing the witnesses when giving their testimony orally in open court, under the provisions of the act of September 22, 1915 (Gen. Acts, p. 705). This construction of said statutes was followed in Manchuria S. S. Co. v. Donald Co., 200 Ala. 638, 77 So. 12; State v. T. J. Mattox Cigar Tobacco Co., 201 Ala. 229, 77 So. 755, 756; Blair v. Jones, 201 Ala. 293,78 So. 69; Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A. 1918D, 858; Faulkner v. Fowler, 201 Ala. 685, 79 So. 257; Barton v. Burton Mfg. Co., 202 Ala. 180, 79 So. 664; Hampton v. Counts, 202 Ala. 331, 80 So. 413.

The act approved September 22, 1915, amended an act approved April 5, 1911 (Laws 1911, p. 198) to amend section 2846 of the Code, and was to the effect that a ruling on a motion for a new trial in the circuit court, city court and court of like jurisdiction, county court of law and equity, or probate court, in granting or refusing same, may be reserved for review by a bill of exceptions. Said act contains the further provision that —

"No presumption in favor of the correctness of the judgment of the court appealed from, shall be indulged by the appellate court." Gen. Acts 1915, p. 722.

The effect given by this court to the latter provision of said act, in law and equity cases, is that where the evidence is ore tenus before the trial judge, unless plainly erroneous, the findings of fact will be treated like the verdict of a jury. Andrews v. Grey, supra; Fitzpatrick v. Stringer, 200 Ala. 574,76 So. 932; Faulkner v. Fowler, supra.

The same rule was held applicable to the reviewing by this court of the facts on which the granting or refusing of a new trial at law was rested. Adams Hdw. Co. v. Wimbish, 201 Ala. 548,78 So. 902; Caravella Shoe Co. v. Hubbard, 201 Ala. 545,78 So. 899; Cole v. A. C. S. R. Co., 201 Ala. 193,77 So. 719; Veid v. Roberts, 200 Ala. 576, 76 So. 934. This rule must obtain where a new trial is granted under like circumstances in equity.

We will not disturb the final decree of the court granting the rehearing. Cobb v. Malone, 92 Ala. 630, 9 So. 738; N.C. St. L. Ry. Co. v. Crosby, 194 Ala. 338, 70 So. 7.

The decree of the circuit court, in equity, is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.

¹ 199 Ala. 152.