Cudd v. Bentley

• Citation: 204 Ala. 586,87 So. 85
• Decision Date: 28 October 1920
• Docket Number: 8 Div. 276
• Parties: CUDD v. BENTLEY et al.
• Court: Supreme Court of Alabama

87 So. 85

204 Ala. 586

CUDD v. BENTLEY et al.

8 Div. 276

Supreme Court of Alabama

October 28, 1920

Appeal from Circuit Court, Morgan County; Horace C. Wilkerson Judge.

Action by E.P. Bentley and another against J.J. Cudd. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

E.W Godbey, of Decatur, for appellant.

E.C Nix, of Albany, for appellees.

GARDNER J.

Suit by appellees against appellant to recover the statutory penalty for failure to enter satisfaction on the margin of the record of a mortgage on personal property under section 4898, Code 1907. The notice requesting satisfaction bears date June 2, 1917; the suit being brought in June, 1919.

If the date upon the notice is correct, the defendant was entitled to a verdict upon his plea of the statute of limitations, and this is the question of prime importance upon this appeal, as it is most strenuously insisted that the trial court erred in refusing to grant the motion for a new trial upon the ground that the verdict was contrary to the overwhelming weight of the evidence. The statement of the case will sufficiently outline the testimony of the respective parties bearing upon this issue of fact, and we need not enter into any detailed discussion of the evidence here, but a brief reference thereto will suffice. The testimony for the plaintiff upon this issue is most uncertain and unsatisfactory. He merely thinks that there was some mistake in the date, but yet is not positive it was not June 2, 1917, when the notice was served. The testimony of the father, as surety, is even less definite and still more unsatisfactory. As opposed to this is the testimony of the attorney who prepared the notice, who, while not testifying positively as to the time, indicates very clearly his own conviction that the paper bears the proper date. The testimony of the defendant is very positive that the notice was served in 1917, and some reasons are given by him for this distinct recollection. There are other circumstances which need not be detailed, which bear against the plaintiffs' contention, and some contradiction between the testimony of witness J.R. Bentley and his answer to certain interrogatories propounded under the statute.

We are of course mindful of the well-established rule that a trial judge who sees the witnesses upon the stand has the better opportunity to judge the weight and credibility of oral testimony, and on appeal...