59 So. 568 | Ala. | 1912
No count of the complaint was subject to any ground of demurrer interposed, though we do not say that all such counts were invulnerable against demurrer, if proper grounds had been assigned. Moreover, count 4 appears to have been amended after the demurrer was interposed; and no demurrer appears to have been directed against this count after such amendment.
The evidence in this case has been carefully examined, that on the main trial,- as well as that on the motion for a new trial; and, though the case was tried by the court without a jury, and the facts were therefore determined by the court, as well as the law, and though we be required to accord to the court’s finding as to the facts the same presumption of verity that is due to the verdict of a jury, yet Ave are of the opinion that the trial court should have granted a new trial, on appellant’s motion.
Though the plaintiff be entitled to recover something, it.does not appear from the evidence, either on the main trial, or on the motion for a new trial, that he is entitled to recover anything like the amount awarded by the court; and, Avhile we are loath to disturb judgments of lower courts on verdicts of juries, or on findings of fact by the court, in our opinion the judgment appealed from is unjust, and should not be allowed to stand. It is therefore reversed, and the cause remanded for a new trial.
Reversed and remanded.