Fannin v. Trotter

Decision Date10 June 1926
Docket Number4 Div. 232
Citation215 Ala. 17,109 So. 102
PartiesFANNIN v. TROTTER.
CourtAlabama Supreme Court

Appeal from Circuit Court, Pike County; W.L. Parks, Judge.

Bill in equity by E.S. Fannin against Napoleon Trotter, to annual a judgment at law against complainant and in favor of respondent. From a decree declaring the amount of complainant's indebtedness to respondent (the basis of said judgment), complainant appeals. Reversed and remanded.

Wilkerson & Brannen, of Troy, for appellant.

R.S Parks, of Troy, for appellee.

THOMAS J.

In a recent case from the Pike circuit court we recognized the right of counsel by written agreement to limit the issues of fact to be considered as entering into the judgment to be rendered. Morgan v. Watkins, 108 So. 561.

And in deciding the question of fact where the evidence is not given ore tenus, this court will weigh de novo the evidence given in chancery case, and give judgment as is deemed just. Code 1923, § 10276; Hodge v. Joy, 207 Ala. 198, 92 So 171; Wade v. Miller, 208 Ala. 264, 93 So. 905.

Under the pleading, the burden of proving the loan to Fannin and Sneider on February 4, 1920, of $225, and that to Fannin for the sum of $85.26 on May 31, 1922, and the loan of $154 to Fannin on or about February 4, 1920, by the respondent rested upon the latter. We have carefully examined the evidence and are of opinion that the items of $225 and $85.26, with interest thereon from their respective due dates, have been proven and should be allowed. The respondent failed in the requirement of going forward with his proof of the item of $154. The same was sharply controverted. The evidence of Long supports the contention of complainant as to the item and it should have been disallowed.

The credits of respondent aggregating $67.61, and (notwithstanding the agreement of counsel) the personal account of Trotter admitted by him to be a valid credit of "around $10," viz. $11.94, should be allowed. The one-third of the $41.36 due by Fannin and Trotter to Fannin and Sneider should not be allowed as payment--as relating to the logging business, as we understand the evidence; the same being within the purview of the agreement of counsel. The same result follows as to the balances due by Tom Kelly and Clarence Teague. Moreover, these accounts were not charged to Trotter by Fannin and Sneider if there was an agreement to pay. Morgan v. Watkins (Ala.Sup.) 108 So. 561.

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10 cases
  • Howell v. City of Dothan
    • United States
    • Supreme Court of Alabama
    • 13 Mayo 1937
    ...... deemed just in the premises. Michie's Code and Code 1923,. § 10276, subsec. (1); Wood v. Foster, 229 Ala. 430,. 157 So. 863; Fannin v. Trotter, 215 Ala. 17, 109 So. 102. . . This. court has declared that a suit on a claim against a city. brought within the time ......
  • Sansom v. Sturkie, 7 Div. 758.
    • United States
    • Supreme Court of Alabama
    • 11 Mayo 1944
    ...... circuit judge upon the facts, but the court shall weigh the. evidence and give judgment as they deem just. Fannin. [245 Ala. 519] v. Trotter, 215 Ala. 17, 109 So. 102;. Cavin v. Cavin, 237 Ala. 185, 185 So. 741;. Howell v. City of Dothan, 234 Ala. 158, 174 So. ......
  • Cavin v. Cavin
    • United States
    • Supreme Court of Alabama
    • 9 Febrero 1939
    ...... before the court. Woodward Iron Co. v. Dean, 217. Ala. 530, 117 So. 52, 60 A.L.R. 536; Fannin v. Trotter, 215 Ala. 17, 109 So. 102; Wade v. Miller, 208 Ala. 264, 93 So. 905; Code, § 10276. . . In. Rogers v. McLeskey, 225 Ala. ......
  • Federal Land Bank of New Orleans v. Henderson, Black & Merrill Co.
    • United States
    • Supreme Court of Alabama
    • 10 Noviembre 1949
    ......Box v. Box,. 243 Ala. 437, 10 So.2d 478; Howell v. City of. Dothan,. . . Page 836. . . 234 Ala. 158, 174 So. 624; Fannin v. Trotter, 215. Ala. 17, 109 So. 102. . .           We. have given careful and studied consideration to the evidence. in this case ......
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