Thompson v. Collier

• Decision Date: 09 February 1911
• Citation: 54 So. 493,170 Ala. 469
• Parties: THOMPSON v. COLLIER.
• Court: Alabama Supreme Court

54 So. 493

170 Ala. 469

THOMPSON v. COLLIER.

Supreme Court of Alabama

February 9, 1911

Appeal from Law and Equity Court, Lee County; A. E. Barnett, Judge.

Action by Belle H. Collier, as executrix, against J. H. Thompson. Judgment for plaintiff, and defendant appeals. Affirmed.

Barnes & Denson, for appellant.

B. T Phillips, for appellee.

ANDERSON J.

The note sued upon matured more than six years before the commencement of the suit, but there was an averment of part payment, which, if true, would remove the beginning of the bar, and which would, therefore, commence to run upon the date of the payment, and could not become complete until six years thereafter. Bailey v. Butler, 138 Ala. 153, 35 So. 111; section 4850 of the Code of 1907. So the sole question is: Was the payment made in the fall of 1902, as testified to by the plaintiff's witness? If it was, the debt was not barred when the suit was brought; and, if it was not made, there should have been a judgment for defendant upon his plea of the statute of limitations of six years. It is true that, where a partial payment is relied upon to intercept the statute of limitations, the burden of proof is upon the party relying on such payment. Knight v Clements, 45 Ala. 89, 6 Am. Rep. 693; Pearce v Walker, 103 Ala. 250, 15 So. 568. But the trial court had facts and circumstances before it not available to us; the evidence being in part ore tenus. He saw and heard some of the witnesses, and could observe their demeanor upon the stand, and his conclusion upon the facts will not be disturbed, unless it is plainly erroneous. We are not prepared to say it was plainly erroneous, as the plaintiff's witness Caro Williams testified: "Some payment has been made on said note. Credit was given on the note. * * * I have positive recollection that J. H. Thompson agreed to let the above-mentioned work go as payment on rent note of 1900. * * * J. H. Thompson made this note to me for rent of land from G. W. Hooper's estate." The defendant did not deny the credits detailed by the witness Williams, but claimed that they were made in the spring, and not fall, of 1902, and that they were to be applied to a debt other than the one represented by the note; and it is doubtful if we would disturb the conclusion, if we were not allowed to resolve intendments in favor of the trial court.

Statutes similar to the one governing appeals from the Lee county court have been frequently construed by this court, to the effect that there would be presumptions in favor of the findings of the lower court, except where this court...