Hardeman v. Williams

48 So. 108 | Ala. | 1908

ANDERSON, J.

— We cannot say that the trial judge erred in granting a new trial in this case. If not justified for other reasons, the evidence warranted him in setting the verdict aside upon the second ground of the motion. Nor can we say that he erred because the defendant was entitled to the general charge. The evidence is materiallydifferent upon this appeal from what it appears to have been in the former report of the case (150 Ala. 415, 43 South. 726, 10 L. R. A. [N. S.] 653) as to Meyers’ connection with the trespass and assault. See testimony of Hermann. Moreover, two additional counts were added after the case was reversed, and, if the plaintiff’s right to recover stood upon them alone, which Ave do not decide, they were proven, and the defendant did not prove his special pleas beyond dispute. The fourth plea justified under a mortgage then unpaid and there was evidence that it was paid. The fifth plea justifies under process and at the request of the constable, “Hermann.” Yet Hermann testified that Meyers went there as a volunteer.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.