Opinion
7 Div. 910.
November 1, 1932.
Appeal from Circuit Court, St. Clair County; Woodson J. Martin, Judge.
Action by Mrs. J. M. Florida and others, trustees of the Fannin School, against J. T. Vandegrift. Judgment for plaintiffs, and defendant appeals.
Affirmed.
M. M. Smith, of Pell City, for appellant.
W. T. Starnes, of Pell City, for appellees.
Appellees, in their representative capacity as trustees of the Fannin School, instituted an action in detinue against appellant for the recovery of certain specific personal property set out in the complaint. The suit was originally brought in the justice of the peace court; and upon agreement of parties the case was tried in the circuit court on the original complaint and upon the plea of the general issue. The cause was tried by Hon. Woodson J. Martin, judge of the circuit court, without the intervention of a jury. The court rendered judgment for plaintiff and against the defendant, for certain of the property sued for, and this action of the court is made the sole basis of the assignments of error.
The evidence in this case was in sharp conflict as to the acquiring and ownership of the property in question — a heater.
It is the long-established rule, in cases where the law authorizes disputed questions of fact to be tried by the court without a jury, on testimony given viva voce in the presence of the court, the appellate court of this state is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside a verdict of the jury rendered on the same testimony. Fulton v. Norris, 162 Ala. 104, 49 So. 1028. The conclusion of a court sitting without a jury, if based upon oral testimony, must on appeal be given the force and effect of a verdict of a jury, and, unless plainly wrong, cannot be disturbed, notwithstanding the statute (Code 1923, § 9498) requires the appellate court to review the judgment and finding without any presumption in favor of the court below on the evidence. Stephenson's Case, 10 Ala. App. 432, 65 So. 314.
We, perforce, must follow the foregoing rules, hence affirm the judgment of the lower court from which this appeal was taken.
Affirmed.