Opinion
4 Div. 634.
June 8, 1920.
Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.
Action by Ben J. Lindsey against M.L. Lisenby for the conversion of certain cut timber. Judgment for plaintiff, and defendant appeals. Affirmed.
It appears from the evidence that both parties claim the land from which the timber was cut, and that the plaintiff had the timber cut and left it upon the land, and that the defendant moved it and put it to his own use. Both parties claim to be in the possession of the land, but neither showed any title to same.
Lee Tompkins, of Dothan, for appellant.
At most the possession was scrambling, and as plaintiff showed neither title nor actual possession, plaintiff was not entitled to recover. 104 Ala. 347, 16 So. 20; 20 Ala. 151; 34 Ala. 159.
R.W. Miller, of Abbeville, for appellee.
Under the facts, plaintiff certainly had the right to recover the value of the blocks, as they were shown to be in his possession. 159 Ala. 663, 49 So. 251.
This suit originated in the justice of the peace court of precinct 6, of Henry county, and from a judgment for plaintiff in that court the defendant appealed to the circuit court. The cause was there tried by the court without a jury, and judgment was again rendered for plaintiff, and appellant appeals to this court, assigning as the only ground of error the rendition of the judgment by the court upon the facts in the case.
It is a familiar rule in this state that the conclusion of a court sitting without a jury, if based upon the oral testimony of witnesses, must on appeal be given the force and effect of a verdict of a jury, and, unless plainly wrong, cannot be disturbed, notwithstanding the statute requires this court to review the conclusions and judgments of the trial court without any presumption in favor of the court below on the evidence.
We have examined the evidence in this case, which is in sharp conflict. There was ample evidence upon which to base the judgment rendered. There is nothing in the record making it clearly apparent that the court was plainly wrong in its conclusions, and the judgment rendered in the court below is affirmed.
Affirmed.