Opinion
1 Div. 181.
April 2, 1935. Rehearing Denied June 4, 1935.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Action for recovery of personal property by W. Otis MacMahon, Jr., against Ellen M. Barnwell, individually and as executrix of the estate of Grace St. John MacMahon, deceased. From a judgment for plaintiff, defendant appeals.
Affirmed.
Gaillard Gaillard, of Mobile, for appellant.
Defendant had the right of appeal directly from any conclusions or judgment of the trial court. There was no necessity for a motion for new trial. Code 1923, §§ 9498, 9502; Shaw v. Knight, 212 Ala. 356, 357, 102 So. 701; Shepherd v. Scott's Chapel, etc., 216 Ala. 193, 112 So. 905; Pizitz Dry Goods Co. v. House of Van Praag, 219 Ala. 183, 121 So. 701; Thornhill v. Gulf Coast Exchange, 219 Ala. 251, 121 So. 912.
Wm. V. McDermott, of Mobile, for appellee.
If the court's finding of fact was error, it should have been called to the court's attention by motion for a new trial or by objection to the evidence. Southern R. Co. v. Morris, 210 Ala. 463, 98 So. 387; Shaw v. Knight, 212 Ala. 356, 102 So. 701; Parrish Coal Co. v. Waid, 21 Ala. App. 593, 110 So. 321; First Nat. L. I. Co. v. Ford, 25 Ala. App. 122, 141 So. 719; Mobile L. R. Co. v. Phillips, 24 Ala. App. 318, 135 So. 424.
This case was tried before the court, sitting without a jury.
The appeal is governed by Code 1923, §§ 9498 and 9502. So it will be seen that it is unnecessary for there to have been interposed below a motion to set aside the judgment in order to call into play our revisory powers over same as for that it was against the weight of the evidence.
But it is established (Code 1923, § 7318) that "although on appeals under those [these] circumstances, it is provided by sections 8599, 9498, and 9502 that there shall be no presumption in favor of the judgment of the circuit court, this [the Supreme] court has repeatedly held that it will review the conclusions of fact reached by the judge trying the case, when the evidence is given orally before him [as in the instant case, we interpolate] only on the same basis that the verdict of a jury will be reviewed, when a motion is made to set aside the verdict as being contrary to the weight of the evidence." Thornhill v. Gulf Coast Produce Exchange, 219 Ala. 251, 121 So. 912. (Italics ours.)
Applying the just above-quoted rule, we may say here, as was said by the Supreme Court in the case cited, "there is no principle of law involved, necessary to consider on this appeal. There was ample evidence to justify the finding by the court, and we cannot say it was contrary to the weight of the evidence, nor particularly against its great weight."
The judgment of the circuit court is affirmed.
Affirmed.