136 Ala. 469 | Ala. | 1902
This was an action brought by the ap-pellee against the appellant bank for $217.52, Avhich ap-.pellee claimed to have on deposit in said hank, and which it, the bank, refused to pay her on demand. The pleas were the general issue and payment..On the trial, the jury rendered a verdict in favor of the plaintiff. The defendant moved the court to set aside the verdict, and that it be granted a new trial on several grounds, among which was that the verdict was contrary to the iveight of th<> iw dence. This motion was denied, and this constitutes the only question presented by the record for our consideration. There are other assignments of error, but they relate to rulings-of the court on the admission and rejection of evidence on the trial, and these cannot be considered, since no bill of exceptions was taken and signed at the term of. the court at which the trial was had. The bill of exceptions contained in the transcript was signed at a subsequent, term of the court.to that, at which the trial was had, and in. the term at which the • motion .for a new trail was heard and acted on.- It may, therefore, be looked to for the purpose of reviewing the action of the court on' the motion for a new trial, and only for that purpose. " In Cobb v. Malone & Collins, 92 Ala. 630, this
The preponderance of the evidence, and there is nothing in the remaining evidence which we have carefully considered to affect, its weight, is so decidedly contrary to the verdict, as to clearly convince us that it is wrong and unjust. Our conclusion does not impute to the plaintiff dishonesty in her testimony, since it is reconcilable with honesty, in her failure to remember that she signed the check and got the money. Her recollection was undoubtedly at fault as to her never having signed a check with only her initials. The testimony of the other witnesses, equally reputable, is a positive statement of recollection of facts that transpired, and which they witnessed. Their statements must be true or false, and, if untrue, cannot be reconciled upon the theory of a want of recollection. We think that justice requires, that the right to have another jury pass on the case should bo given the defendant.
The judgment denying the motion for a new trial will be reversed, and a judgment granting the motion will be here rendered and the cause remanded.
Reversed, rendered and remanded.