Karter v. Peck

• Decision Date: 16 May 1899
• Citation: 121 Ala. 636,25 So. 1012
• Parties: KARTER v. PECK ET AL. PECK ET AL. v. KARTER.
• Court: Alabama Supreme Court

25 So. 1012

121 Ala. 636

KARTER v. PECK ET AL.

PECK ET AL. v. KARTER.

Supreme Court of Alabama

May 16, 1899

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by E. H. Peck & Bro. against J. H. Karter. After a verdict and judgment for defendant, a new trial was granted. Both parties appeal, and each moves to dismiss the other's appeal. Plaintiffs' motion to dismiss is granted defendant's is overruled, and the order is affirmed.

The only disputed question of fact was whether or not the defendant had sufficient facts brought to his knowledge which would put him on inquiry, which, if diligently pursued, would have given him notice of plaintiffs' mortgage lien on the cotton in question. The first and second assignments of error made by the appellant J. H. Karter were based upon the action of the trial court in overruling the demurrer interposed by the defendant to the plaintiffs' complaint. In the appeal by J. H. Karter the appellees E. H. Peck & Bro. moved the court to dismiss the appeal upon the ground that the judgment of the court granting a new trial would not sustain an appeal. E. H. Peck & Bro. also moved the court to strike the first and second assignments of error because the rulings on demurrer cannot be reviewed by this court on an appeal by the defendant Karter from a judgment granting a new trial.

J. B Brown and W. T. L. Cofer, for plaintiffs E. H. Peck & Bro.

Will G Brown, for defendant.

SHARPE J.

E. H Peck & Bro. sued J. H. Karter in a complaint declaring in case and trover for the value of cotton alleged to have been mortgaged by one McCall to plaintiffs, and afterwards converted or wrongfully disposed of by the defendant. Upon the issues of fact the verdict was in favor of the defendant, and judgment was rendered accordingly. Thereafter, upon plaintiffs' motion, a new trial was granted. From that order both parties have appealed, and the two appeals are here submitted together, with appellees' motion in each case to dismiss the appeal of the opposing party.

The motion for new trial contained as grounds both that the verdict was contrary to the evidence, and that the court erred in the giving and refusal of charges. The record does not show upon what ground the motion was granted, and, if the order was proper under either ground, the trial court's action cannot be reversed. The rule adopted by this court for reviewing an order granting a new trial for insufficiency of the evidence to support the verdict was laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 738, where it was said that such decisions "will not be reversed unless the evidence plainly and palpably supports the verdict." The rule was approved and followed in White v. Blair, 95 Ala. 147, 10 So. 257, and again in Dillard v. Savage, 98 Ala. 598, 13 So. 514, where the court applied it, and justified the application partly upon the ground that "the trial judge heard the testimony of the witnesses,...