McCrary v. Brawley & Yarbrough Bros.

DOWDELL, J. We were at first of the opinion that the evidence plainly and palpably supported the judgment of the court on the trial, and that under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 738, the court erred in granting a neAV trial. A reconsideration of the evidence leads us to the conclusion that the eAddence was not Avithout conflict, and, this being true, we cannot say that the evidence “plainly and palpably'’ supported the verdict, or, rather, the judgment, as the case was tried by the court without a jury. The witnesses testified orally before the court, and what was said in Karter v. Peck & Bro., 121 Ala. 636, 25 South. 1012, with respect to this, is applicable here. The conclusion reached renders it unnecessary to discuss the question of newly discovered evidence. The judgment appealed from will be affirmed. Affirmed. Tyson, C. J., and Anderson and McClellan, JJ., concur.