Ex parte KEMP et al.

(83 South. 485) Ex parte KEMP et al. (1 Div. 128.) (Supreme Court of Alabama. Nov. 20, 1919.) Appeal and error &wkey;>1094(5) — Supreme Court will not review Court op Appeals on questions op eaot. Where a cause was tried by a court, and the Court of Appeals, finding error, was authorized to reverse and remand or render, as it deemed right, under Code 1907, § 5361, and where its discretion in that regard depended upon the facts, the Supreme Court cannot interfere. Certiorari to Court of Appeals. Petition by W. H. Kemp and the National Surety Company for certiorari to the Court of Appeals to review and revise the judgment and decision of the Court of Appeals, rendered in the case- of W. H. Kemp et al. v. Annie J. Donovan et al., 84 South. 412. Application dismissed. The review sought is to have the judgment of the Court of Appeals reversed only in so far as the said Court of Appeals remanded said cause and to here render judgment for appellants such as should have been rendered by the lower court. Gaillard, Mahornor & Arnold, of Mobile, for appellants. Counsel fees could not be allowed as damages. 124 Ala. 614, 27 South. 454; 100 Ala. 286, 14 South. 44; 65 Ala. 417; 63 Neb. 638, 88 N. W. 860; 2 Neb. (Unof.) 512, 89 N. W. 412; 65 111. App. 646. There was no dispute as to the fact, and judgment should here be rendered for the defendants. Section 2890, Code 1907; Acts 1915, p. 824; 178 Ala. 340, 60 South. 88. Smiths, Young & Leigh, of Mobile, for appellees. No brief appears in the record. [MAJORITY — SAYRE, J.] SAYRE, J. Petitioners were appellants in the Court of Appeals. By that court the judgment of the trial court was reversed and remanded. One of the judges thought the judgment should be rendered. Petitioners now seek to have the cause disposed of in accordance with the minority opinion in the Court of Appeals. The cause was tried by. the court without the intervention of a jury. The Court of Appeals, finding error, was authorized to reverse and remand or render, as it deemed right. Code, § 5361; Munson S. S. Line v. Horace Turner & Co., 81 South. 76. its discretion in that regard depended upon the facts, and this court will not review the Court of Appeals on questions of fact. Postal Tel. & Cable Co. v. Minderhout, 195 Ala. 420, 71 South. 91. Application denied. ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur. 202 Ala. 574.