85 So. 823 | Ala. Ct. App. | 1919
This was a suit to recover an amount claimed by the appellee as due him growing out of a certain detinue suit, wherein one McMurray was plaintiff and one Trammell was the defendant; the appellee's insistence being that the appellant under the facts in that case was the beneficiary and real plaintiff in the case; that McMurray was merely the nominal plaintiff, acting for and on account of the appellant here. The testimony tended to show that the appellant was the owner of the mortgage which was the foundation of the McMurray-Trammell suit; that it received the property recovered by said suit. The instant case was tried by the judge without a jury, and, while no plea appears in the record, the appellate court will presume the proper plea was filed to let in the evidence which the primary court admitted. 4 Mayfield Digest, 469.
There are two assignments of error; the first being that the court erred in rendering judgment for the appellee, and, second, that the court erred in improperly refusing to grant the defendant's motion for a new trial. The defendant's motion for a new trial nowhere appears in the record, and there is nothing in the record upon which a consideration of the second assignment can be had.
The second count of the complaint may have been subject to demurrer; but none were interposed, no plea was filed thereto, and we are not prepared to say but that the evidence tended to prove the allegations thereof. Anyway, there were conflicting tendencies of the evidence, and the trial judge had all the witnesses before him, and we cannot say that the record shows any reversible error.
Affirmed.