Bowling v. State

May 13, 1920

5 Div. 755.

Reporters:: , ,
Before:: Anderson

ANDERSON, C. J.

[1] We are, of course, aware of the well-established rule that, when a cause is tried by the court without a jury and the evidence is ore tenus, or partly so, ’the trial court lias the advantage over this court of seeing and hearing the witnesses, and its conclusion on facts is like unto the verdict of a jury, and will not be disturbed by this court, unless plainly contrary to the great weight of the evidence, and that said rule applies to equity as well as cases at law. The evidence in the present case, however, fully supported the petitioner’s mortgage, and was not materially controverted nor contradicted directly or inferentially. The petitioner not only proved the existence of a valid subsisting mortgage, but met the statutory requirement of negativing notice or knowledge on his part of the unlawful use of the automobile. Not only was the conclusion of the trial court contrary to the evidence, but the petitioner would have been entitled to the general affirmative charge with the hypothesis, had this been a jury case.

[2] The trial court erred in disallowing the petitioner’s claim, and the decree is reversed, and one is here rendered, granting the petitioner relief, and the case is remanded, in order that the sale of the automobile shall be made by the sheriff, so as to subject the interest of the offending party in the same, and subject to the lien of the appellant. State v. Crosswhite, 203 Ala. 586, 84 South. 813.

Reversed, rendered, and remanded.

McClellan, sayre, and Gardner, JJ., concur.