Opinion
7 Div. 839.
May 29, 1969.
Appeal from the Circuit Court, Talladega County, William C. Sullivan, J.
Arthur D. Shores, Birmingham, for appellants.
Where complainant fails to produce evidence to make a prima facie case a motion to exclude should be granted and judgment had for the respondent. 1940 Code of Alabama, Tit. 7, § 828; Tilley v. Tucker, 261 Ala. 287, 73 So.2d 923; Barbaree v. Flowers, 239 Ala. 510, 196 So. 111; Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Sylvest v. Stowers, 276 Ala. 695, 166 So.2d 423. Where a judgment and a decision of the court is not sustained by the great preponderance of evidence, the appellate court will reverse the trial court. Code 1940, Tit. 7, § 828; Tilley v. Tucker, supra; Barbaree v. Flowers, supra; Branyon v. Kirk, supra.
Robert W. Weaver, Talladega, for appellees.
Failure of party's evidence to establish prima facie case is not sufficient grounds for a motion to exclude the evidence. Wise v. Curl, 177 Ala. 324, 58 So. 286; Mardis' Adm'rs. v. Shackleford, 4 Ala. 493; Dec.Dig., Trial, 55. Decree overruling application for rehearing and not modifying final decree is not subject to review on assignments for error on appeal from final decree. Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601; N.A.A. C.P. v. State, 274 Ala. 544, 150 So.2d 677; Long v. O'Mary, 270 Ala. 99, 116 So.2d 563; Equity Rule 62, Ala. Code 1940, Tit. 7, App.; 2A Ala.Dig., Appeal Error, 870(6). The appellate court will not reverse the trial court unless the trial court's decision is shown to be palpably wrong and unjust and contrary to the great weight of the evidence. Deese v. Odom, 283 Ala. 420, 218 So.2d 134; State v. City Wholesale Groc. Co., 283 Ala. 426, 218 So.2d 140; Talley v. Lott, 283 Ala. 499, 218 So.2d 828.
This is an appeal from a final decree of the circuit court of Talladega County, Alabama, in equity, establishing a disputed boundary line between property of the appellants and appellees.
Appellants, Nix, assign as error: (1) The court erred in overruling their motion to exclude the evidence; (2) the court erred in overruling their motion for rehearing.
Appellees, Hassell, contend that the trial court can never be put in error for overruling a motion to exclude in a civil case; and, that a decree overruling an application for rehearing is not appealable. These contentions are correct.
The assignment of error that the court erred in overruling appellants' motion to exclude is without merit. This court has long held that in civil cases, the trial court will not be put in error for refusing a defendant's motion to exclude the plaintiff's evidence. Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891; Western Railway of Alabama v. Brown, 280 Ala. 543, 196 So.2d 392; Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490. As we commented in Jack Cole Co. v. Hayes, 281 Ala. 118, 199 So.2d 659:
"The granting of a motion to exclude the evidence is never proper in this jurisdiction (Robinson v. Morrison, 272 Ala. 552, 133 So.2d 230), although a trial court will not be put in error in granting such motion, even though procedurally improper, where the plaintiff's evidence does not make out a prima facie case. Stewart v. Peabody, 280 Ala. 5, 189 So.2d 554, and cases therein cited."
Appellants' assignment of error that the court erred in overruling their motion for rehearing is likewise without merit because we have held that a decree denying an application for rehearing will not support an appeal. Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601.
The final decree of the court below is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.