Opinion
6 Div. 920.
January 15, 1920.
Appeal from Circuit Court, Fayette County; Henry B. Foster, Judge.
McNeil Monroe, of Fayette, and Harwood, McKinley, McQueen Aldridge, of Tuscaloosa, for appellant. Counsel insist, first, that specific performance will be enforced against the executor, that the deed to Ray will be construed as a deed, and not a will, and that, though ineffectual to convey title, it will be construed as a bond for title; but, in view of the opinion, it is not deemed necessary to here set out the authorities cited. They further insist that no weight can be given the finding of the trial court, but that the appellate court must weigh the evidence and render the proper decree, citing section 5955, subd. 1, Code 1907; 127 Ala. 376, 30 So. 555; 133 Ala. 599, 32 So. 495; 172 Ala. 655, 55 So. 293.
Foster, Verner Rice, of Tuscaloosa, for appellee. Most of the evidence was ore tenus, and the questions presented are of fact, and not of law, and the appellate court will not disturb the decree of the trial court, unless it is manifestly unjust. 199 Ala. 152, 74 So. 62.
This decision must rest on a question of fact. As shown by the record, the witnesses were examined orally before the court. The judge had the benefit of observing the manner and general demeanor of the witnesses and the better opportunity to pass upon the credibility of the testimony. His finding has the force of a verdict of a jury. In Andrews v. Gray, 74 So. 62, this court declared that section 5955 of the Code of 1907, subd. 1, providing that on chancery appeal no weight shall be given the chancellor's decision upon the facts, but the Supreme Court shall weigh the evidence, applies only where the judge trying the issue had not the advantage of seeing and hearing the witnesses when giving their testimony orally in open court, under the provisions of the act of September 22, 1915 (Gen. Acts, p. 705). This construction of said statutes was followed in Manchuria S. S. Co. v. Donald Co., 200 Ala. 638, 77 So. 12; State v. T. J. Mattox Cigar Tobacco Co., 201 Ala. 229, 77 So. 755, 756; Blair v. Jones, 201 Ala. 293, 78 So. 69; Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A. 1918D, 858; Faulkner v. Fowler, 201 Ala. 685, 79 So. 257; Barton v. Burton Mfg. Co., 202 Ala. 180, 79 So. 664; Hampton v. Counts, 202 Ala. 331, 80 So. 413.
199 Ala. 152.
The act approved September 22, 1915, amended an act approved April 5, 1911 (Laws 1911, p. 198) to amend section 2846 of the Code, and was to the effect that a ruling on a motion for a new trial in the circuit court, city court and court of like jurisdiction, county court of law and equity, or probate court, in granting or refusing same, may be reserved for review by a bill of exceptions. Said act contains the further provision that —
"No presumption in favor of the correctness of the judgment of the court appealed from, shall be indulged by the appellate court." Gen. Acts 1915, p. 722.
The effect given by this court to the latter provision of said act, in law and equity cases, is that where the evidence is ore tenus before the trial judge, unless plainly erroneous, the findings of fact will be treated like the verdict of a jury. Andrews v. Grey, supra; Fitzpatrick v. Stringer, 200 Ala. 574, 76 So. 932; Faulkner v. Fowler, supra.
The same rule was held applicable to the reviewing by this court of the facts on which the granting or refusing of a new trial at law was rested. Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902; Caravella Shoe Co. v. Hubbard, 201 Ala. 545, 78 So. 899; Cole v. A. C. S. R. Co., 201 Ala. 193, 77 So. 719; Veid v. Roberts, 200 Ala. 576, 76 So. 934. This rule must obtain where a new trial is granted under like circumstances in equity.
We will not disturb the final decree of the court granting the rehearing. Cobb v. Malone, 92 Ala. 630, 9 So. 738; N.C. St. L. Ry. Co. v. Crosby, 194 Ala. 338, 70 So. 7.
The decree of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.