Opinion
7 Div. 943.
September 12, 1933. Rehearing Denied October 3, 1933.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Action in assumpsit by Luther Echols, a minor suing by his next friend, A. M. Echols, against C-J Parts Company and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Certiorari denied by Supreme Court in C-J Parts Co. v. Echols (7 Div. 221) 150 So. 703.
L. B. Rainey, of Gadsden, for appellants.
It is the duty of the court to set aside a verdict when justice is not done between the parties. Parker v. Hayes Lbr. Co., 221 Ala. 73, 127 So. 504; Hull v. Vining, 17 Wn. 352, 49 P. 537; Cloud v. Markle, 186 Pa. 614, 40 A. 811; 23 Cyc. 820.
Motley Motley, of Gadsden, for appellee.
The appellate court will not set aside a verdict on conflicting evidence because it does not correspond with its opinion as to the weight of the evidence; the presumption being in favor of the correctness of the ruling of the trial court denying the motion for a new trial. Hatfield v. Riley, 199 Ala. 388, 74 So. 380; Cole v. A. G. S. R. Co., 201 Ala. 193, 77 So. 719; Huntsville K. Co. v. Butner, 201 Ala. 536, 78 So. 890; Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902; A. G. S. R. Co. v. Snodgrass, 201 Ala. 653, 79 So. 125; City of Mobile v. Rush, 202 Ala. 628, 81 So. 570.
Appellee, a minor, by next friend, brought suit against appellants, to recover the sum of $90 alleged in the first count to be due on account; and in the second count, for money had and received. The cause was tried by the court below without a jury and judgment rendered for plaintiff for the amount sued for. From this judgment defendants appealed.
The transaction complained of grew out of a sale of a secondhand, or used, car, to plaintiff, a boy 17 years of age.
The controlling question in this case is one of fact and relates to the identity of the purchaser of the car in question. As to this, we think the evidence was ample to sustain the judgment rendered by the lower court. Certainly so under the well-established rule to the effect that the appellate courts will not set aside a judgment and reverse a case on appeal where it was based upon conflicting evidence. It is also the rule that the conclusion of a court sitting without a jury, if based upon 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, though the statute (Code 1923, § 6088) requires the appellate courts to review the judgment and finding without any presumption in favor of the court below on the evidence. Winter-Loeb Grocery Co. v. Mutual Warehouse Co., 4 Ala. App. 431, 58 So. 807; Glenn Refining Co. v. Webster, 5 Ala. App. 441, 59 So. 717.
The questions of law involved in this case are simple, and the rulings of the court thereon were without error. It would serve no good purpose to restate the points of decision and the law in this connection, there being but slight, if any, controversy presented. As stated, the controlling question was one of fact only. The judgment of the court from which this appeal was taken is affirmed.
Affirmed.