Flaherty v. People's Bank

113 So. 910, 216 Ala. 542

• Court: Supreme Court of Alabama
• Decided: June 30, 1927
• Docket: 1 Div. 423
• Status: Published

Opinion

SOMERAULLE, J.

The issue presented on the trial of this case in the court below was whether the property levied on and sold by the defendant as the property of William H. Flaherty, or any part of it, was in fact the property of him, the defendant in execution, or was his property so far as the rights of creditors were concerned; or whether it, or any part of it, was the property of the plaintiff herein.

The testimony of the plaintiff, and of his father, William H. Flaherty, made out a perfect case of title and right of possession in the plaintiff, as to all of the property described in the complaint, and, if believed, entitled him to recover. This seems to be conceded by counsel for appellee, who say in their brief:.

“It was admitted that, if the jury believe the evidence of appellant, Harry F. Flaherty, and of his father, William H. Flaherty, he was entitled to recover, but, if they reach the conclusion that these witnesses were unworthy of belief, and this was a frame-up between them to gouge the bank, a .verdict should be rendered for defendant.”

We have examined and sifted the evidence with very great care, and we do not find any material contradiction of the testimony of those two witnesses. It may be conceded that, with respect to the few items of the property which appear to have belonged to the former, William H: Flaherty, or to his company, the Gulf Wrecking Company, prior to its purchase or acquisition by plaintiff directly from him, the circumstances might permit an inference by the jury that, notwithstanding its ostensible change of ownership, it remained in fact the property of the defendant in execution, and subject to the payment of his debts.

But, with respect to the other items, the evidence is bare of anything tending to show it was bought for the father or his company, or that it was bought with his or their money, or that they ever had any interest whatever in it. As to that property, the only impediment, if any, in the way of plaintiff’s right to recover it, .was the incredibility of the testimony of plaintiff and his father.

Wle are therefore unable to avoid the conclusion that as to all of the property in suit, except what was acquired from William H. Flaherty, the plaintiff was entitled to recover, if the jury believed the evidence.

Charge 1, instructing for a verdict generally, if the jury believed the evidence, should have been given, as should also charge 3.

The other refused charges, on account of predicating recovery upon the jury’s belief of “the undisputed evidence,” have a tendency to mislead or mystify the jury as to the evidence to be looked to; and for that reason we would not put the trial court in error for their refusal.

For the errors noted, the judgment will be reversed, and the cause remanded for another trial.

Beversed and remanded.

ANDEBSON, C. J., and THOMAS and BBOWN, JJ., concur.