IN RESPONSE TO APPLICATION FOR REHEARING.
SAYRE, J.Counsel for appellant insist that the holding on this appeal is diametrically opposed to the ruling and opinion of *468the majority on the former appeal reported in 183 Ala.'645, 62 South.1833: ' ■ ■
(3) On the face of the reports of thé two appeals this contention would appear to be true; and we therefore deem it proper, if not necessary; to explain the holding in the two cases and the opinion of the majority on the former appeal.
In the first place, what was said in the opinion of the majority as to the sufficiency of the evidence before the probate judge to support his finding was dictum, for the reason that we held that he should have granted a motion for a new trial on the ground of newly discovered evidence. It was therefore unnecessary to decide as to the correctness of the judgment -which we held should have been set aside, and which was set' aside, and a new trial ordered. The appeals are materially different; the former appeal to this court was not from the probate court, as was this appeal, but was from the circuit-court. We were there reviewing the judgment of the circuit court, and not that of the probate court. " '
(4) The holding on the first appeal was necessarily a holding to the effect that, if the evidence on another trial should be the same in effect as that indicated by the' affidavits for a new trial, the-judgment of the probate court should and would be différent. Neither the circuit court nor this court could consider the affidavits; except for the purpose of saying whether or not the‘probate court'should-have awarded a hew-trial: These affidavits were nbt before the probate-judge- when he rendered his first decree declaring George' Bell and Cornelia Jackson the lawful heirs of Jim Bell. The affidavits first'appeared in the probate court in support of a motion to set aside the -judgment theretofore - rendered. For'that reason the circuit court could not Or should not'have considered -them'-except' t'o review the'action of the probate-court in awarding'-a new trial.' '.....
On this appeal, however,'the substance' of' these affidavits, which are - numerous' and extensive, was put in evidence beforé the probate court; and-he considered them, or- should have considered them, in rendering the decree appealed from. Hence' the evidence is materially different, both-in kind and "in quantity, from that adduced in support of the final decree rendered by the probate court, which this court, on the'former appeal, ordered to be .set- aside, and which was accordingly set- aside, and a new trial.awarded.•. . • - ' • • ...... ‘ :
*469(5) This court still adheres to the correctness and soundness of the rule announced in Nooe’s Case, 70 Ala. 446,‘and which was quoted and followed on the former appeal, to the effect that: “When the law authorizes the’ disputed question to be tried, and it is tried, by the court without a jury,- on testimony given viva voce in the presence of the court, * * * the rule is, not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury, rendered on the same testimony.”
We now recognize and follow that rule, after a careful examination of the evidence as shown by the record on this appeal, which, as we have shown above, is very different from’ that on the first appeal, except that which appeared only in support of the motion for a new trial, and which we then held was sufficient to entitle these appellees to a new trial. The holdings of the majority, in the two cases, are not therefore inconsistent, though the results are entirely different owing to the fact that the evidence before the probate court, on the two trials, was materially different. In other words, if the evidence on this appeal were not different from that on the other appeal, we áre not prepared to say that the result would be different. It is therefore the difference" between the evidence on the two trials which leads the majority to a-different result from that attained on the first appeal. - • ■