Kelley v. Lovett

FOSTER, Justice. This is a trial of the right to one hundred bushels of corn and a wagon, under section 10375, Code. An execution in favor of appellee and against W. H. May-field was levied on the property, and appellant, who was the mother of defendant in execution, made claim to it. The trial of that claim was by a jury, and resulted in a. verdict for the plaintiff on the issue made up under the direction of 'the court. The assignments of error go to the refusal of the affirmative charge for appellant (which we do not find in the record)', .and overruling the motion for a new trial. If the affirmative charge was due to be given for appellant, though not requested, because the evidence was insufficient to justify a verdict for plaintiff, the motion for a new trial should have beefi granted on that ground. But the evidence showed that defendant was in possession of 'the property when the levy was made. There is much evidence tending .to show that it was his own, and not that of his mother, the claimant. On this point there was much conflict, by reason of which the jury was justified in finding as they did. The trial was had on well settled rules in that respect. See City Holding Co. v. Hosch, 220 Ala. 113, 124 So. 291. The motion for a new trial was also based upon the alleged relation of two jurors, Weaver and Watts, to the deceased wife of plaintiff having children then living. Only one of the jurors, Weaver, testified, and he said: “I did not know I was related. I do know it now and I don’t know it, only what I have been told.”' Thereupon the following proceedings took place: “By the Court: Who does the claimant claim this witness is related to? “By Mr. Carey, Attorney for claimant: To the plaintiff’s deceased wife. “By the Court: The plaintiff’s wife is dead? “By Mr. Carey: Yes, sir. ' “By the Court: You claim the juror was related to the plaintiff’s wife and, therefore, is related to the plaintiff by marriage ? “By Mr. Carey: Yes, sir. “By the Court: But the plaintiff’s wife was dead at the time of the trial? “By Mr. Carey: But they have children. “By the Court: Well, does that make them related? Watts was one of the jurors, who was he related to? “By Mr. Carey: The wife of Watts is a granddaughter of the half brother to. the mother of the plaintiff’s former wife. “By the Court: And the wife of Watts is now dead? “By Mr. Carey: Yes, sir.” We do not understand that the statements thus made by counsel were intended to be more than information in response to inquiries by thp court as to what he claimed, not that he had personal knowledge of the relation or that his statement was intended and received as proof. The court’s refusal to set aside the verdict on that ground could well be sustained on account of an absence of *540 proof of such relation. Other questions in that connection do not .therefore need consideration. No other questions are insisted on for reversal. Affirmed. ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.