CAMPBELL v. STATE
6 Div. 917
Supreme Court of Alabama
April 21, 1927
Rehearing Denied June 2, 1927
216 Ala. 295 | 112 So. 902
In Griffin v. Dawsey, 196 Ala. 218, 72 So. 32, “it is without dispute that the money borrowed was paid to the wife, or, to be exact, that the draft or check was made payable to her, and that it was endorsed by her to the bank which paid the money.”
In Bell v. Farmers’ National Bank of Opelika, 214 Ala. 211, 106 So. 851, the money was loaned to the wife by the bank on her written application, and she gave her individual note to the bank, with a mortgage on real estate. The money was entered to her credit, and she gave a check on this account to her husband, who used the money, not to pay debts previously contracted, but to operate his cotton business.
The other cases cited by the appellees are no more applicable here than the foregoing.
In this case the wife did not receive the money nor the check, which was made payable direct to, and delivered to, Mrs. Clark, to pay part of the purchase money for lands deeded to the husband, and, after careful consideration of the evidence in this record, we are of opinion that it clearly shows that the money was loaned by the appellee Simpson to the husband, Harry Kimbrell, and that the mortgage was given to secure his debt.
The decree of the circuit court is reversed, and one here rendered granting to the appellant the relief prayed in her bill.
Reversed and rendered.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
Certiorari 57—Court of Appeals’ application of harmless error rule will not be reviewed on certiorari unless authorized by statement of facts in opinion.
Supreme Court will not, on application for writ of certiorari, review Court of Appeals on question of application of doctrine of error without injury unless statement of facts in opinion authorizes review, since to look to record would necessitate review of facts or application of law to facts.
Certiorari to Court of Appeals.
Petition of C. P. Campbell for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Campbell v. State, 112 So. 901. Writ denied.
Thos. E. Orr, of Albertville, and Prosch & Prosch, J. S. McLendon, and O. D. Street & Son, all of Birmingham, for appellant.
Where the record shows that evidence has been erroneously admitted, prejudice will be presumed, and the burden is on the appellee to show affirmatively that no prejudice resulted. 4 C. J. 912; Tenn. Coal Co. v. State, 141 Ala. 103, 37 So. 433; Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358, 90 Am. St. Rep. 914; Deal v. Houston County, 201 Ala. 434, 78 So. 809; C. of G. v. Teasley, 187 Ala. 616, 65 So. 981; Coffman v. L. & N., 184 Ala. 474, 63 So. 527; Brandon v. Progress Dist. Co., 167 Ala. 365, 52 So. 640; Shields v. Henry, 31 Ala. 53; Pool v. Devers, 30 Ala. 672; Thomas v. De Graffenreid, 27 Ala. 658; Moore v. Clay, 24 Ala. 235, 60 Am. Dec. 461; Brown v. Grayson, 17 Ala. App. 463, 86 So. 121.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
PER CURIAM. Writ denied.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and BROWN, JJ., concur.
On Rehearing.
PER CURIAM. The Court of Appeals in disposing of the petitioner‘s case applied the doctrine of error without injury to the matter now complained of, without stating the facts in the opinion on which the conclusion of error without injury was predicated.
The settled rule here is that we will not, on application for the writ of certiorari, review that court on such question unless the statement of the facts in the opinion is such as authorizes a review. This court will not look to the record in the case to determine whether or not the doctrine has been improperly applied, as this would necessitate a review of the Court of Appeals on the facts or the application of the law to the facts. Ex parte Steverson, 211 Ala. 597, 100 So. 912; Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Kirkwood v. State, 184 Ala. 9, 63 So. 990; Ex parte Western Union Tel. Co., 183 Ala. 451, 63 So. 88.
Application overruled.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and BROWN, JJ., concur.