Perry & Co. v. King

HARALSON, J. The judgment in this case was not by default nor nil dicit, but on the verdict of the jury. The entry recites, that the parties appeared by their attorneys and issue being joined, came a jury of good and lawful men, who being duly sworn upon their oaths said, “We the jury find for plaintiff, and assess the damages at $75.” Judgment was rendered on this finding. The entry shows an appearance, and on motion to set it aside, the appearance cannot be disputed. The record is conclusive in such case. — Newton v. Ala. Mid. Railway Co., 99 Ala. 468; Pettus v. McClannahan, 52 Ala. 35; 2 Brick. Dig. 140, §§ 137-140. It is well settled, that when rendered, a verdict on the merits’is final and conclusive between the parties, not only as to facts actually litigated and decided, but also as to all facts necessarily involved in the issue, (Chamberlain v. Gaillard, 26 Ala. 504; Haas v. Taylor, 80 Ala. 459) ; and, unless affirmatively shown to be wrong, the [537] presumption of the correctness of the judgment of the primary court arises. — 1 Brick. Dig. 781, § 120. There were two motions made to set aside this verdict, and judgment, rendered on the 25th of November, 1896, and grant a new trial,-each filed the same day, — the 7th of December, 1896, — the first by Fittts & Somerville, attorneys, appearing specially for the motion, and the second, by Wm. C. Fitts, attorney for defendants. The complaint setting out the instrument sued on, — a detinue bond given by defendants in another suit, — appears in the transcript, but what evidence was introduced on the trial of the cause, • resulting in a verdict and judgment for the plaintiff, does not appear. On the trial of the' motion to set aside that verdict and judgment, the overruling'of which is here assigned as error, it is observable, that the affidavits submitted on the motion and the other evidence, related to facts occurring prior to the rendition of the judgment, some of which might have been competent evidence on the trial of the cause. The court overruled the motions, and this ruling is assigned as error. The application for a rehearing was not made under section 2872 of the Code, but under the act of February 16th, 1891, relating to appeals from decisions of the city and circuit courts granting or refusing motions for new trials (Acts, 1890-91, p. 779). Under this act, as we have repeatedly held, this court will not reverse an order refusing a new trial on the ground that the evidence is not sufficient to support the verdict, or that the verdict is contrary to the evidence, “unless after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. — Cobb v. Malone, 92 Ala. 630; Holland v. Howard, 105 Ala. 538. Having regard for the conclusiveness of the judgment,' as to the facts litigated or that might have been litigated, within the issues, and the presumption as to'the correctness of the ruling of the primary court, until error is affirmatively shown, we are constrained to hold that the evidence relied on in this motion is not sufficient to justify us in the conclusion that the court erroneously denied it. There is no preponderance of evidence to show that the verdict was clearly wrong and unjust. Affirmed,