113 So. 277 | Ala. | 1927
Lead Opinion
The assignments of error are rested upon the refusal to grant the motion for a new trial by the Windsor Realty Company. This is the third appeal by that company.
In Godfrey v. Vinson (Ala. Sup.)
Appellant's counsel state that the sole assignment of error is the refusal of the court to grant plaintiff's motion for a new trial on the four grounds stated. We will consider the same as assigned. Affirmative charge was properly refused under Doe ex dem. Windsor Realty Co. v. Finnegan,
There were conflicts in evidence as to the validity of the deed in question. Conflicts in evidence or adverse inferences to be found in the evidence were as to whether Mrs. Finnegan did or did not sign a deed to the land. Mrs. Leveille, a daughter, said it was not the handwriting of Mrs. Finnegan, and she was required to rewrite her name, and the two signatures were before the jury; and the evidence of Smithson contained adverse inference as to the grantor. Moreover, there were adverse inferences to be found in the evidence of Mrs. Mills' marriage to Finnegan.
The exception to the alleged illegal argument of counsel was not ruled on by the court, and there was no motion to exclude or motion for a continuance asked. There was a difference of opinion of counsel as to the evidence showing the facts commented upon. The court instructed the jury they would have to remember the evidence, and that counsel had the right "to argue the evidence, but not to argue what is not the evidence." If the argument in question was improper, it was not such as required a reversal in the absence of due exception. Ala. Power Co. v. Goodwin,
The motion for a new trial was also rested upon the giving of the following charge:
"If the jury are reasonably satisfied from the evidence that the defendant was the wife of Thomas Finnegan at the time that the paper purporting to be a deed from M. E. Mills to N. Smithson was executed, and was then living with him as his wife, then such paper was not binding on defendant Mrs. Finnegan as a deed."
It hypothesized the reasonable satisfaction of the jury from the evidence that the defendant was married at the time the purported deed from Mills (Mrs. Finnegan) to Smithson was executed; then, it was not a valid conveyance and binding on the defendant. Such is the law of conveyances by married women not executed by the husband.
The litigation should end.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
Dissenting Opinion
The following excerpt from 29 Cyc. 729, finds support in the authorities:
"More than one new trial, after concurring verdict, on the ground that the verdict is against the weight of the evidence, is rarely granted." L. N. R. R. Co. v. Woodson,
Of course each case is to be determined upon its own fact and circumstance. All matter considered, and in connection with the cumulative force of the verdict rendered, I am not persuaded the action of the trial judge in declining to grant another trial should be here disturbed, and therefore respectfully dissent. *434
Addendum
The majority, as indicated, are of the opinion that the statute (section 9519, Code of 1923) applies only after two new trials granted upon the ground that the verdict is not supported by the weight of the evidence, where the verdicts were rendered upon substantially the same evidence; that the new trial ordered by this court in Windsor Realty Co. v. Finnegan,
The court adheres to the views expressed in the opinion of Mr. Justice Sayre on the second appeal, and holds that the motion for a new trial should have been granted on the ground that the verdict was contrary to the great weight of the evidence. The writer desires by way of dissent to say:
The two new trials in the case at bar are
The meaning of the statute, declaring, as it does, "no more than two new trials can be granted the same party in any cause" (section 9519, Code of 1923, and unchanged from section 2407, Code of 1852, and Aiken's Digest, p. 283, § 135), has not been defined by this court. Looking to other jurisdictions for construction and application of like statutes, we are not without worthy precedents. Railway Co. v. Mahoney, Admrx.,
In Ill. Cent. R. Co. v. McManus,
In the case of L. N. R. Co. v. Woodson,
"Tested by this rule, whenever the statute is applied, it must be upon the assumption that, although the court would have found a different verdict, because of the weakness of the evidence, yet there was some evidence tending to establish the cause of action. Courts rarely grant a new trial after two verdicts upon the facts in favor of the same party, except for error of law, and the statute, in the interest of the termination of litigation, makes that imperative which would otherwise be discretionary. For decisions under similar statutory provisions, see Silsbe v. Lucas,
The express provisions of section 9519 of the Code, under the issues of fact heretofore supporting reversals, prevent the considering of the motion for a new trial on grounds of preponderance and insufficiency of the evidence, there being evidence to support the verdict upon the trial.
Rehearing granted, judgment of affirmance set aside, and the judgment of the circuit court is reversed, and one is here rendered granting the motion for a new trial.
ANDERSON, C. J., and SAYRE, SOMERVILLE, BOULDIN, and BROWN, JJ., concur.
GARDNER and THOMAS, JJ., dissent.