Andrews v. Grey, 7 Div. 847

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: 74 So. 62,199 Ala. 152
• Parties: ANDREWS et al. v. GREY.
• Decision Date: 01 February 1917
• Docket Number: 7 Div. 847

74 So. 62

199 Ala. 152

ANDREWS et al.
v.
GREY.

7 Div. 847

Supreme Court of Alabama

February 1, 1917

Appeal from Chancery Court, Talladega County; W.W. Whiteside, Chancellor.

Bill by Randolph Grey against D.J. Andrews and others, to annul a mortgage and to quiet title. Decree for complainant, and respondents appeal. Affirmed.

Graves Embry, of Talladega, for appellants.

Isadore Shapiro, of Birmingham, and Riddle & Burt, of Talladega, for appellee.

THOMAS, J.

The appeal is from a decree of the chancery court, canceling a mortgage, purporting to have been executed by appellee and wife upon the lands specifically described in the bill.

The testimony was taken orally, in open court, under the provisions of the act of September 22, 1915 (Gen.Acts 1915, p. 705). The act provides, among other things, that in all cases in equity the judge or chancellor before [74 So. 63.] whom the case is pending may, at any time before final decree, cause any or all of the witnesses to be examined orally before him in open court. The chancellor, therefore, had the opportunity in this case of seeing and hearing the witnesses, and of observing their demeanor, when giving their testimony in the cause, which is enjoyed by the judge trying a civil cause at law without the intervention of a jury ( Hackett v. Cash, 72 So. 52; Finney v. Studebaker Corp., 72 So. 55; Thompson v. Collier, 170 Ala. 469, 54 So. 493; Woodrow v. Hawving, 105 Ala. 246, 16 So. 720; De Vendell v. Hamilton, 27 Ala. 156; Bott v. McCoy, 20 Ala. 578, 56 Am.Dec. 223; Barnes v. Mayor, 19 Ala. 707; Etheridge's Case, 18 Ala. 565), or by the judge in a criminal case ( Scruggs v. State, 165 Ala. 121, 51 So. 302), or by the trier of facts on testimony given viva voce in the presence of the probate court (Nooe v. Garner, 70 Ala. 443, 446; Bell v. Bell, 183 Ala. 645, 62 So. 833), or by the trial judge in passing on a motion for a new trial (Jackson Lumber Co. v. Trammell, 74 So. 469, or by a register in chancery in finding a submitted issue of fact, from evidence given viva voce, or from pleadings before him (Bidwell v. Johnson, 70 So. 685; Chancellor v. Teel, 141 Ala. 634, 37 So. 665; Pollard v. Mortgage Co., 139 Ala. 183, 35 So. 767; Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450; Roy v. O'Neill, 168 Ala. 354, 52 So. 946; Jones v. White, 112 Ala. 449, 20 So. 527; Anniston v. Ward, 108 Ala. 85, 18 So. 937; Vaughan v. Smith, 69 Ala. 92).

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