Summary
In Parker et al. v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504, it is said: "* * * The evidence was in conflict, but the trial court saw and heard the witnesses, and on appeal some presumption must be indulged in favor of its action.
Summary of this case from Schaeffer v. WalkerOpinion
4 Div. 472.
March 13, 1930. Rehearing Denied April 17, 1930.
Appeal from Circuit Court, Covington County; Ernest Thigpen, Judge.
E. O. Baldwin, of Andalusia, for appellants.
The verdict of the jury will not be set aside unless palpably erroneous, wrong, or unjust. Watkins v. Potts, 219 Ala. 427, 122 So. 416; Jena Lbr. Co. v. Marlowe Lbr. Co., 208 Ala. 385, 94 So. 492; Mann v. Butcher, 211 Ala. 669, 101 So. 595; C. I. C. Co. v. Wright, 212 Ala. 130, 101 So. 824; M. L. T. Co. v. King, 187 Ala. 619, 65 So. 998, L.R.A. 1915F, 491, Ann. Cas. 1916B, 449; Ala. F. I. Co. v. Andrews, 215 Ala. 92, 109 So. 750. Where the evidence is undisputed, it is error, after judgment for defendant, to grant plaintiff a new trial. Dunston v. Tomlin, 22 Ala. 642, 119 So. 247.
Marcus J. Fletcher, of Andalusia, for appellee.
A motion for a new trial is addressed to the sound legal discretion of the trial court, and it will not be disturbed unless clearly and palpably erroneous. Code 1923, § 9518; Batson v. State, 216 Ala. 275, 113 So. 300; 15 R.C.L. 688.
This is an appeal from the ruling of the trial court which set aside the verdict of a jury and granted appellee, plaintiff in the trial court, a new trial. The evidence was in conflict, but the trial court saw and heard the witnesses, and on appeal some presumption must be indulged in favor of its action. As was said in Batson v. State, 216 Ala. 275, 113 So. 300, courts of record have inherent power, independent of the statute, to set aside and vacate their orders and judgments within the term and for common-law causes. Hence we attach no controlling importance to the fact that appellees in their motion described the verdict as contrary to the great weight of the evidence and as contrary to the preponderance of the evidence rather than as, in the language of the statute, section 9518 of the Code, not sustained by the great preponderance of the evidence. The evidence in this case was in conflict, as we have said, but, if the trial court had a definite and well-considered opinion that the verdict failed to do justice between the parties, it had the right and was under duty to set it aside and grant a new trial. On appeal this court will not reverse an order granting a new trial, "unless the evidence plainly and palpably supports the verdict" (Cobb v. Malone, 92 Ala. 630, 9 So. 738), meaning, as we think, that this court will not reverse in such case, unless the evidence adduced in the trial court plainly and palpably shows that the trial court was in error. The evidence in this case has been duly considered, but, for fear its consideration on another trial may be prejudiced, however careful the language of discussion, we have preferred to leave the matter with the statement that we find no error in the ruling under review.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.