Bookmiller v. Jones
| Decision Date | 21 April 1927 |
| Docket Number | 7 Div. 732 |
| Parties | BOOKMILLER v. JONES. |
| Court | Alabama Supreme Court |
Rehearing Denied June 2, 1927
Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.
Action by A.T. Jones against C.L. Bookmiller. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
Frank B. Embry, of Pell City, and Goodwyn & Goodwyn, of Montgomery, for appellant.
Starnes & Starnes, of Pell City, for appellee.
It is inferable from the testimony that the laborer's lien asserted by plaintiff on January 7, 1926, was for work done or completed within the period of 60 days preceding, and hence the plea of 60 days' limitation was properly denied. The plea would have been good as to labor done under other contract assignments prior to September 28, 1925, but the record does not present that question.
It is insisted that plaintiff, suing alone, could not recover, because his coworker, Savage, was jointly interested with him in the compensation due for their joint or concurrent labor and was therefore a necessary party plaintiff to the suit.
Probably the weight of the evidence supports that view, but, on the whole, it was fairly a jury question, and its determination by the trial court, on testimony heard viva voce, will not be disturbed.
Affirmed.
On Rehearing.
Counsel for appellant take us to task for overlooking or disregarding section 9498 of the Code providing that:
"Either party to a civil cause tried by the court without the intervention of a jury may present for review by bill of exceptions the conclusions and judgment of the court on the evidence and the Court of Appeals or Supreme Court shall review the same without any presumption in favor of the court below. ***"
We refer counsel to the case of Hackett v. Cash, 196 Ala. 403, 72 So. 52, and to Halle v. Brooks, 209 Ala. 486, 96 So. 341, wherein the application of the statute is restricted to cases where the evidence is not heard viva voce, or where there is no question of the credibility of witnesses. Numerous other cases have confirmed this construction, and it is too well settled to permit of any further discussion.
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