McCrary v. Brawley & Yarbrough Bros.

• Decision Date: 02 March 1907
• Citation: McCrary v. Brawley & Yarbrough Bros., 43 So. 787, 150 Ala. 662 (Ala. 1907)
• Parties: MCCRARY v. BRAWLEY & YARBROUGH BROS.
• Court: Alabama Supreme Court

43 So. 787

150 Ala. 662

MCCRARY v. BRAWLEY & YARBROUGH BROS.

Supreme Court of Alabama

March 2, 1907

Rehearing Denied May 6, 1907.

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action between T. L. McCrary and Brawley & Yarbrough Bros. From the judgment, McCrary appeals. Affirmed.

David A. Grayson, for appellant.

Walker & Spraggins, for appellees.

DOWDELL J.

We were at first of the opinion that the evidence plainly and palpably supported the judgment of the court on the trial and that under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 738, the court erred in granting a new trial. A reconsideration of the evidence leads us to the conclusion that the evidence was not without conflict, and this being true, we cannot say that the evidence "plainly and palpably" supported the verdict, or rather, the judgment, as the case was tried by the court without a jury. The witnesses testified orally before the court, and what was said in Karter v. Peck & Bro., 121 Ala. 636, 25 So. 1012, with respect to this, is applicable here.

The conclusion reached renders it unnecessary to discuss the question of newly discovered evidence. The judgment appealed from will be affirmed.

Affirmed.

TYSON,...