Sewell v. Cherokee County Bank

ANDERSON, Chief Justice. The only question presented for review on this appeal is the action of the trial court in refusing the defendants’ motion for a new *112 trial. The appellant Sewell contends that the evidence, or the great weight of same, shows that he was an innocent purchaser of the mule, in that the description of the mule in the recorded mortgage was so variant from the mule he bought as not to charge him with constructive notice. There was such conflict in the evidence as to the description of the mule as to make the identity of the one bought with the one described in the mortgage a question for the jury. But, apart from this, appellants’ counsel concede that the mortgage was sufficient as between the mortgagor and the mortgagee and, this being the case, there was evidence that Sewell, before acquiring the mule, was given express notice that this mule was covered by appellee’s mortgage. This was denied by Sewell, but the evidence was not so decidedly against the verdict as to put the trial court in error for refusing the motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is next urged that in no event should there have been a judgment against the John Deere Company. It is sufficient to say, when a joint appeal is taken, and no severance in the assignment of error, as here, the case cannot be reversed unless the error complained of was prejudicial to all of the appellants. Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241; Lillich v. Moore, 112 Ala. 532, 20 So. 452; Mobile Temperance Hall Ass’n v. Holmes, 195 Ala. 437, 70 So. 640. The judgment of the circuit court is affirmed. Affirmed. GARDNER, BOULDIN, and FOSTER, JJ., concur.