Tomlin v. Mayor of Birmingham

109 Ala. 243

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

BRICKELL, G. J.

On an appeal to a superior tribunal from a conviction of a violation of a municipal ordinance, the complaint must distinctly disclose the liability of the defendant; and the liability is disclosed when the complaint, as in the present .case, sets out the ordinance, and avers the act or acts of the- defendant in breach of it. The ordinance is in the alternative ; but the complaint singles out and specifies the alternative the defendaht-is charged with .haying violated. The demurrer was properly overruled. Ganaway v. Mayor, 21 Ala. 577; Case v. Mayor, 30 Ala. 538.

The trial was before the court without the intervention of a jury. And in this class of cases it has long been the settled rule not to reverse the judgment unless the decision of the court on the matters-of fact is manifestly wrong. Dane v. Mayor, 36 Ala. 304. We cannot say this of the decision in the present case ; nor can we say that the decision is not supported by the preponderance of the evidence. Manifestly, if the cause had been submitted to a jury, and a verdict rendered, the verdict could not have been set aside as contrary to the evidence .

Let the judgment be affirmed.