74 Ala. 338 | Ala. | 1883
— Section 3890 of the Code of 1876 provides, that “ whenever it is necessary for any fact to be tried by a jury, the court must direct an issue to be made up, setting forth clearly the true fact to be tried; and such issue must be tried before the chancellor, or may be sent to the Circuit Court in the district for trial,” &c. Section 3891 is in these words: '“Such issue must be tried .upon the like evidence as a suit at law, .together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order.”
These sections relate to issues out of chancery. They declare hy statute what had long been known as a well recognized rule in chancery proceedings. The principle on which it rests is, that in doubtful or controverted questions of fact, requiring
When the testimony is indeterminate, or conflicting, who is to determine when it becomes “ neeessary for any fact to be tried by a jury?” It would seem, on principle, that this question must necessarily be submitted to the discretion of the chancellor. He is charged with the ascertainment of the facts,, and he, of necessity, must determine the inquiry, whether his judgment and conscience are so clearly convinced, that he does not need the finding of a jury. The exercise of such discretionary power by the chancellor, can not be the subject of review in an appellate court. — Anonymous, 35 Ala. 226; Dale v. Roosevelt, 6 Johns. Ch. 255; Tappan, v. Evans, 11 N. H. 311; Bassett v. Johnson, 2 Gr. Ch. 417; Black v. Shreve, 13 N. J. Eq. 454, 478; 2 Dan. Ch. Pr. 1110, n. 3. Applying this principle to this case, we feel bound to affirm that the complainant’s right of recovery depended largely on inferences to be drawn from circumstances of suspicion, against positive testimony to the contrary. We can not say this case falls without the chancellor’s discretionary power, to order the disputed question of fact to be tried by a jury.
2. It is contended, in the next place, that the chancellor should have decreed for complainant, veredicto non obstante. This contention is based alone on the depositions found in the record. But how can we know, or presume, that the issue before the jury was tried on that evidence alone? The statute directs that “such issue must be tried upon the like evidence as a suit at law,” together with the proof furnished by the chancery file, as the chancellor may order. How. in the state of this record, are we to know what oral evidence was or was not given before the jury ? In the absence of record proof to the contrary, we must presume that all was rightfully and law
There is nothing in the present record to show any improper ruling in the Circuit Court; nothing to show what additional testimony was before the jury, and no motion for a new trial was made in the court below. We feel bound to presume the verdict was sustained by sufficient evidence.
The decree of the chancellor is affirmed.