On Petition for Rehearing
Appellee seriously argues on rehearing that the status of the evidence on trial did not warrant a finding for the plaintiff because there was no proof of the alternate value of the property and a judgment entered accordingly; that therefore the judgment for the defendant should not be reversed. This is the general rule. Title 7, § 921, Code of 1940; Gwin v. Emerald Co., 201 Ala. 384, 78 So. 758; MacKey v. Hall Auto Co., 27 Ala.App. 557, 176 So. 318; Graham v. Fincher, 21 Ala.App. 276, 107 So. 327.
But a well recognized exception to the rule is that if no prejudice appears by the failure to assess the alternate value there is no error. Universal C. I. T. Cred. Corp. v. Phenix-Girard Bank, 254 Ala. 643, 49 So.2d 273; Dobson v. Neighbors, 228 Ala. 407, 153 So. 861; Sauls v. Hand, 242 Ala. 643, 7 So.2d 762.
In the instant case the defendant was the successful party in the trial below and, of consequence, he suffered no prejudice by the failure of the court to follow the statute and assess the alternate value of the suit property. Bolling v. Coffin, 262 Ala. 459, 79 So.2d 808; Sauls v. Hand, supra; Dobson v. Neighbors, supra.
Application for rehearing overruled.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ. concur.