THIRD NAT. BANK IN NASHVILLE v. MERRILL

4 Div. 776.

72 So.2d 113 (1954)

THIRD NAT. BANK IN NASHVILLE v. MERRILL.

Supreme Court of Alabama.


Attorney(s) appearing for the Case

Prestwood & Prestwood, Andalusia, for petitioner.

Baldwin & Baldwin, Andalusia, opposed.


MERRILL, Justice.

We concluded upon preliminary consideration of appellant's petition for certiorari to the Court of Appeals that the writ should issue because of the following statement in the opinion of the Court of Appeals, wherein it was decided that the appellee, defendant below, was entitled to the affirmative charge with hypothesis: "We do not think that the very scant evidence relating to notice afforded a reasonable inference adverse to the claim of appellee."

It is argued here that this statement conflicts with the scintilla rule, but we assume the Court of Appeals meant to say that the mere fact that the automobile in question bore a Tennessee tag was not sufficient to meet the burden cast upon plaintiff in this case, nor did it alone amount to a scintilla of evidence. See Cannady v. Jinright, 253 Ala. 341, 44 So.2d 737. Certainly we think this is the construction that should be placed upon the statement in view of the facts set out in the opinion of the Court of Appeals, even though the expression "the very scant evidence", was perhaps used inaptly.

Having reached this conclusion, it is unnecessary for us to consider appellee's motion to dismiss the petition. The petition for writ of certiorari will be denied.

The judgment of the Court of Appeals is affirmed.

Affirmed.

LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY and GOODWYN, JJ., concur.

CLAYTON, J., not sitting.


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