
    The ESTATE OF Howard WATKINS, Deceased v. Phylistine STATON.
    Civ. 2495.
    Court of Civil Appeals of Alabama.
    Feb. 18, 1981.
    Fred K. Granade of Stone, Partin & Gra-nade, Bay Minette, for appellant.
    Thomas W. Underwood, Jr. of Chason & Underwood, Foley, for appellee.
   HOLMES, Judge.

The plaintiff filed a claim against the defendant-estate. The Circuit Court of Baldwin County, after an ore tenus hearing, ruled in favor of the plaintiff. The amount of the judgment against the defendant-estate was $1,840. The defendant-estate appeals and we conditionally affirm.

The dispositive issues on appeal are (1) whether the evidence supports the amount of the judgment and (2) whether the trial court committed reversible error in allowing certain testimony as evidence.

I

We do not deem it necessary to set out the facts or contentions as they relate to issue (1). Suffice it to say the plaintiff agrees, in brief, that the amount of the judgment is not supported by the evidence. Additionally, the parties to the appeal agree as to the amount that is supported by the evidence, to wit, $548.46.

At this juncture, we would like to thank the plaintiff for her candor.

II

The defendant, through able counsel, contends that certain testimony given by plaintiff, over objection, was inadmissible by virtue of § 12-21-163, Code of Ala. 1975, Alabama’s Dead Man statute.

Again, we do not deem it necessary to set out in detail these contentions.

For the purposes of this appeal, we accept defendant’s contention that certain testimony and other evidence were not admissible. However, we find such admission of evidence to be error without injury. See Rule 45, ARAP.

There was ample credible evidence to support the trial court’s judgment in the amount indicated above. We refer to the testimony of Mrs. Heibel, Ms. Pilgrim, and Ms. Lanagan.

In view of the above, a judgment will accordingly be entered that unless the plaintiff files a remittitur with the clerk of this court within thirty days reducing the judgment to $548.46, the judgment of the trial court will be reversed and the case shall be remanded. If, however, such re-mittitur is filed, a judgment for $548.46 will stand affirmed.

AFFIRMED CONDITIONALLY.

WRIGHT, P. J., and BRADLEY, J., concur.  