Opinion
4 Div. 786.
October 26, 1943. Rehearing Denied November 9, 1943. Affirmed on Mandate March 28, 1944.
Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.
Action in detinue by Troy Finance Corporation against E.O. Baldwin. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Certiorari granted by Supreme Court in Baldwin v. Troy Finance Corporation, 245 Ala. 384, 17 So.2d 417.
E.O. Baldwin, of Andalusia, for appellant.
Judgment against either party must be for the property sued for, or its alternate value, with damages for its detention to the time of trial. Code 1940, Tit. 7, § 921; Greene v. Lewis, 85 Ala. 221, 4 So. 740; Gwin v. Emerald Co., 201 Ala. 384, 78 So. 758.
If the appellate court is of the opinion that the judgment is excessive the case should be reversed or affirmed on condition that the plaintiff remit. Code, Tit. 7, § 811. A new trial is warranted for an excessive amount of damages by a court without a jury. Mower v. Shannon, 178 Ala. 469, 59 So. 568; Holcombe Bowden v. Reynolds, 200 Ala. 190, 75 So. 938.
W.H. Albritton, of Andalusia, for appellee.
The judgment strictly follows the letter and spirit of the statute; it is for the property sued for, or its alternate value, with damages for its detention to the time of trial. Even if there should be some technical defect in the language of the judgment it would not be sufficient to work a reversal. Floyd v. Jackson, 26 Ala. App. 575, 164 So. 121. On appeal from refusal to grant new trial, the appellate court will indulge every presumption in favor of the ruling of the trial judge. Equitable L.A. Soc. v. Garrett, 26 Ala. App. 395, 160 So. 776; Ward v. Forbus, 213 Ala. 306, 104 So. 765. The record does not show that the judgment is excessive. Thomas Bros. v. Williams, 170 Ala. 522, 54 So. 494. There was no suggestion of a balance due under contract. Code 1940, Tit. 7, §§ 929, 930. Whether a new trial is necessary to prevent a failure of justice is a matter addressed to the discretion of the trial court, and its determination thereof is not reviewable unless there has been a palpable abuse of discretion. 5 C.J.S., Appeal and Error, § 1628, p. 537.
This appeal is from the original judgment, adverse to appellant, rendered by the trial court sitting without a jury. This action of the court is made the basis of assignments of error 1, 2 and 3.
This court has read and studied this record with attentive care.
It appears that a judgment nil dicit was pronounced and entered by the trial court, as stated, sitting without a jury, in a detinue suit for the recovery of one 1937 Ford Tudor Automobile, under which judgment it was adjudged that the plaintiff have and recover of the defendant said automobile, if to be had, and if not, then its alternate value found to be $200, together with damages for its detention, found by the court to be $510.
The defendant, appellant, filed his motion for a new trial alleging, among other things, that said judgment was excessive.
Testimony was offered in support of said motion and after a consideration thereof said motion was overruled and denied by the trial court. Exception was duly reserved.
It will serve no good purpose to discuss the facts of this case other than to say that the internal evidence itself, that is, the judgment of the trial court, in the light of the value of the automobile as found by the trial court, taken in connection with the amount of damages awarded for its detention, clearly convinces us that said judgment is plainly and palpably excessive and unjust, therefore judgment appealed from is reversed and the same is hereby remanded. Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447; Cobb v. Malone and Collins, 92 Ala. 630, 9 So. 738.
Reversed and remanded.
Affirmed on Mandate.
Affirmed on authority of Baldwin Troy Finance Co., 245 Ala. 384, 17 So.2d 417.