Opinion
7 Div. 732.
April 21, 1927. Rehearing Denied June 2, 1927.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Frank B. Embry, of Pell City, and Goodwyn Goodwyn, of Montgomery, for appellant.
If plaintiff ever had a transfer of the property attached, it was barred by the 60-day statute. Code 1923, § 8903. If defendant owed any amount, it was to plaintiff and Savage jointly, and Savage should have been made a party plaintiff. Hood v. Warren, 205 Ala. 332, 87 So. 524; Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358, 90 Am. St. Rep. 914.
Starnes Starnes, of Pell City, for appellee.
Every reasonable presumption will be indulged in favor of the correctness of the conclusions of the trial court. Gurley v. Henderson, 21 Ala. App. 569, 110 So. 63; Montgomery v. McNutt, 214 Ala. 692, 108 So. 752; Dicks v. McAllister, 20 Ala. App. 5, 100 So. 631.
It is inferable from the testimony that the laborer's lien asserted by plaintiff on January 7, 1926, was for work done or completed within the period of 60 days preceding, and hence the plea of 60 days' limitation was properly denied. The plea would have been good as to labor done under other contract assignments prior to September 28, 1925, but the record does not present that question.
It is insisted that plaintiff, suing alone, could not recover, because his coworker, Savage, was jointly interested with him in the compensation due for their joint or concurrent labor and was therefore a necessary party plaintiff to the suit.
Probably the weight of the evidence supports that view, but, on the whole, it was fairly a jury question, and its determination by the trial court, on testimony heard viva voce, will not be disturbed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing.
Counsel for appellant take us to task for overlooking or disregarding section 9498 of the Code providing that:
"Either party to a civil cause tried by the court without the intervention of a jury may present for review by bill of exceptions the conclusions and judgment of the court on the evidence and the Court of Appeals or Supreme Court shall review the same without any presumption in favor of the court below. * * * "
We refer counsel to the case of Hackett v. Cash, 196 Ala. 403, 72 So. 52, and to Halle v. Brooks, 209 Ala. 486, 96 So. 341, wherein the application of the statute is restricted to cases where the evidence is not heard viva voce, or where there is no question of the credibility of witnesses. Numerous other cases have confirmed this construction, and it is too well settled to permit of any further discussion.