Roe v. Doe ex dem. Delage

• Decision Date: 14 February 1907
• Citation: 150 Ala. 445,43 So. 856
• Parties: ROE ET AL. v. DOE EX DEM. DELAGE ET AL. [*]
• Court: Alabama Supreme Court

43 So. 856

150 Ala. 445

ROE ET AL. v. DOE EX DEM. DELAGE ET AL. ^[*]

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by John Doe, on the demise of one Delage and others, against Richard Roe and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

B. F McMillan, Jr., and R. P. Roach, for appellants.

J. H Webb and Shelton Simms, for appellees.

HARALSON J.

At the conclusion of the evidence, the court charged: "If the jury believe the evidence they should find for the plaintiff for the land described in the complaint," but they returned a verdict for the defendants.

Thereupon the plaintiffs moved the court to set aside the verdict because it was contrary to the charge of the court. The court granted the motion and the verdict was set aside. The only assignment of error is, that "the court erred in granting plaintiffs' motion to set aside the verdict of the jury." The evidence in the case is set out in the transcript but it is not stated that what there appears was all the evidence. As no errors are assigned upon the admission or exclusion of evidence, we make no reference to these matters further than to say, "When the evidence, though partly oral, is without conflict, and establishes the plaintiff's right to recover, the court may instruct the jury, 'If they believe the evidence, they must find the issues in favor of the plaintiff;' but it is error to add anything to this charge that would indicate how the court thought they ought to find, since that would invade their province." Davidson v. Woodruff, 63 Ala. 432.

"If important, it would not be improper to state, that when the general charge is given and the bill of exceptions does not purport to set out all the evidence, we will presume, in favor of the correctness of the ruling of the lower court, that there was evidence to justify the charge given." Barnett v. Wilson, 132 Ala. 375, 31 So. 521.

In some other jurisdictions, we find that "a verdict that is contrary to the instructions will be set aside." Jones v. Lynch, 54 Ga. 271; Thornton v. Lane, 11 Ga. 459. "A verdict founded on a disbelief of clear and undisputed evidence will be set aside." Cunningham v. Gans, 79 Hun, 434, 29 N.Y.S. 979. "While the credibility of witnesses is for the jury, yet where it is apparent that the jury acted arbitrarily in rejecting the testimony of material witnesses, a new trial will be granted." Ernst v. Tombler, 1 Lehigh Val. Law Rep'r (Pa.) 133.

"The court has the superintendence of juries in matters of fact and will grant a new trial when it has strong reason to believe a jury has erred, capriciously or ignorantly, as to the credibility of the testimony." Burt v. Stackney, 2 Mill, Const. (S. C.) 323. "A verdict rendered in disregard of instructions given, though erroneous, is against the law, and should be set aside." Murray v. Heinze, 17 Mont. 353, 42 P. 1057, 43 P. 714; 37 Am. Dig. (Cent. Ed.) 975,...