B.P. McDuffie & Sons v. Weeks
| Decision Date | 13 November 1913 |
| Court | Alabama Court of Appeals |
| Parties | B.P. McDUFFIE & SONS v. WEEKS. |
Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.
Action by Minerva Weeks against B.P. McDuffie & Sons. Judgment for plaintiff, and defendants appeal. Affirmed.
C.D Carmichael, of Geneva, for appellants.
W.O. Mulkey, of Geneva, for appellee.
The jury before whom the case was tried rendered a verdict in favor of the plaintiff, and the defendants made a motion for a new trial and appeal from the order overruling the motion. No exception is shown to have been reserved to any ruling of the court during the progress of the trial, and the grounds assigned in the motion for a new trial (five in number) in substance are: (1) The verdict is contrary to the law and the evidence; (2) the note sued on was paid before suit was brought; (3) the court erred in requiring the defendants to go to trial when not ready; (4) the plaintiff's testimony on the trial was a surprise to defendants; and (5) the jury was prejudiced by improper argument of plaintiff's counsel.
The first ground stated for the new trial, under the well-known rulings on that subject, presents no other question here on review of the trial court's order overruling the motion than a consideration of the evidence to see if, after allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.
The controverted question of fact before the court and submitted to the jury for its determination was whether or not the note sued upon had been paid. The note was in the possession of the plaintiff bringing suit on it, and the evidence showing payment seems to be about equally balanced with the contrary evidence on that issue, so far as we are able to judge from the testimony of the witnesses as set out in the bill of exceptions. Certainly it does not show such a preponderance of the evidence in support of the contention of payment as to meet the rule that would justify us in holding the lower court in error for refusing to set the verdict of the jury aside and grant a new trial on that account. See Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 which case has been repeatedly and universally followed on this proposition.
The second, third, fourth, and fifth grounds of the motion for a new trial all relate to matters occurring on the trial to which no objection is shown to have been made and can avail the appellants nothing on this appeal. The controverted question before the court was whether or not the note sued on was...
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De Soto Coal Mining & Development Co. v. Hill
...if they did, it should have been made known to the court at the trial, with a request for the withdrawal of the case. B.P. McDuffie & Sons v. Weeks (App.) 63 So. 739; McClendon v. McKissick, 143 Ala. 188, 38 So. Since the foregoing opinion was written, we have been furnished with a suppleme......
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State v. McDaniel
...evidence against the verdict and judgment is so decided as to clearly convince us that it is wrong and unjust. McDuffie and Sons v. Weeks, 9 Ala.App. 282, 63 So. 739; State v. Boone, The posture and manner in which grounds 2, 3, 7, 11, and 14 have been presented in brief renders them unavai......
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Connecticut General Life Ins. Co. v. Carter
...verdict, the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. McDuffie & Sons v. Weeks, 9 Ala.App. 282, 63 So. 739. There is no dispute in the evidence. It consisted of pertinent features of the group policy of life insurance which was......
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...in favor thereof, the evidence is so against the verdict as to convince the court that it is wrong and unjust. McDuffie & Sons v. Weeks, 9 Ala.App. 282, 63 So. 739; Connecticut General Life Ins. Co. v. Carter, 46 Ala.App. 222, 239 So.2d 895; State v. McDaniel, 285 Ala. 310, 231 So.2d Defend......