| Ala. | Dec 15, 1880
— Where, in a civil case, a jury is waived by the parties, and an issue of fact is submitted to the determination of the court, it is provided by the statute, that “in such case the finding of the court upon the facts shall have the same effect as the verdict of a jury.” — Code (1876), § 3029. It is further provided that this court, .in the exercise of its appellate jurisdiction, may review the sufficiency of the facts to support the judgment of the inferior court only where there has been a special finding of the facts at issue between the parties.' — Code, §§ 3030-31.
The sole question of fact to be determined in this case was, the delivery or non-delivery of a certain deed to real estate executed and duly acknowledged by one James McCarthy, but retained in his possession until his death, when it was obtained 'by the grantees under claim that it had been constructively delivered to them during the grantor’s life.
The evidence bearing on this issue was not without conflict, and is recited in the bill of exceptions, which concludes, thereupon, as follows : “Upon this evidence the cause was submitted to the court to decide, as a question of law, whether the said trustees, Christopher and Kate Johnson [the grantees in the conveyance] held the title to this property under the said instrument, or whether the property belonged to the estate of James McCarthy and entitled the administratrix to the rents from said Zeigler, the defendant. And to the rulings of the court upon said finding offacts the plaintiff excepted,” &c.
The record fails to disclose any such “special finding of facts” as is demanded by the statute before this court can assume jurisdiction to review the conclusions of the Circuir Court on the evidence. This finding is required to be not only special, as opposed to a general finding, but is required to be “reduced to writing and entered upon the minutes of the court.” — Code, § 3030.
The judgment entry, in its recitals, does not fulfill the ex- ’ actions of the statute. After stating that the case was submitted for trial without the intervention of a jury, it concludes as follows: “And upon due consideration of the same the court is of opinion that the plaintiff is not entitled to recover, and hence judgment is rendered for the defendant.” This was a general and not a special finding by the court, and the. assignment of error based on an exception to
The judgment is affirmed.