Hatfield v. Riley

• Decision Date: 21 December 1916
• Docket Number: 3 Div. 251
• Citation: 74 So. 380,199 Ala. 388
• Parties: HATFIELD v. RILEY.
• Court: Alabama Supreme Court

74 So. 380

199 Ala. 388

HATFIELD v. RILEY.

3 Div. 251

Supreme Court of Alabama

December 21, 1916

Rehearing Denied Feb. 15, 1917

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Suit by George Riley against Henry Hatfield. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Sayre J., dissenting.

W.R Brassell, of Montgomery, for appellant.

L.A Sanderson, of Montgomery, for appellee.

GARDNER J.

Suit in detinue for the recovery of a mule, the controversy growing out of a trade between plaintiff and defendant, wherein they exchanged mules as an "even swap," and for a rescission of the contract by plaintiff, on account of the alleged unsoundnes of the mule received in the trade.

The second assignment of error reads as follows: "The court erred in admitting the evidence of W.B. Holmes." There was no objection made to the testimony of the withess as a whole, and no motion in the court below to exclude the same. Such a general assignment will not suffice to bring up for review objections to one or two questions which seem to have been interposed upon the examination of this witness. The appellant, under this assignment of error, can therefore take nothing under the established rules of this court. Kinnon v. L. & N.R.R. Co., 187 Ala. 480, 65 So. 397; Ogburn-Griffin Co. v. Orient Ins. Co., 188 Ala. 218 66 So. 434; Craig & Co. v. Pierson Lbr. Co., 169 Ala. 548, 53 So. 803.

The remaining assignments of error seek a review of the action of the court in overruling the motion for a new trial. It is first insisted that a new trial should have been awarded, for the reason that the verdict was contrary to the evidence. The record has been carefully examined; and while it may be conceded that the preponderance of the evidence was favorable to the defendant, yet in a case of this character, where the evidence was in conflict, the court is not called upon to set aside the verdict because it may not correspond with its opinion as to the weight of the evidence. We deem it unnecessary to discuss the testimony, but after a careful review of it we are not persuaded, under the familiar rule announced in Cobb v. Malone, 92 Ala. 630, 9 So. 738 that a reversal should be rested upon this action of the court. The trial court had the witnesses before him, and had the advantage of observing their manner and demeanor on the stand. Under the long-established rule of this court in such circumstances, the presumption is in favor of the correctness of his ruling. This rule has not been changed by recent legislative enactment. Acts 1915, p. 722. The reasoning in the cases of Hackett v. Cash, 72 So. 52, and Studebaker v. Finney, 72 So. 54, applies to the...