Akin v. Chancy Bros. Hardware & Furniture Co.

93 So. 408, 207 Ala. 523, 1922 Ala. LEXIS 175

• Court: Supreme Court of Alabama
• Decided: April 20, 1922
• Docket: 4 Div. 989.
• Status: Published

Opinion

GARDNER. J.

The first question presented by this appeal for consideration is the refusal of the court to give the affirmative charge requested in writing by appellant. The bill of exceptions fails to disclose that it contains all, or substantially all, the evidence upon which the cause was tried. Under these circumstances, therefore, following the uniform decisions of this court, the nation of the trial court. in refusing this affirmative charge will not be reviewed. 7 Mayf. Dig. 134.

The only question which appears to be argued concerning the action of the court in overruling the motion for a new trial is the refusal of the affirmative charge, which has been considered. Moreover, the bill of exceptions makes no reference whatever to the motion for new trial, nor that any exception was reserved to the action of the court in overruling the same. The exception only appears in the judgment entry of the motion, which is set out in the record proper. This is not sufficient evidence, under the decisions of this court, that an exception was reserved to the ruling of the court on the motion. This question, likewise, we are not in position to review. This was expressly decided in Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 South. 548, and Powell v. Polmar, 201 Ala. 271, 78 South. 47.

These are the only questions presented for consideration, and it therefore results that the judgment appealed from will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MID-LER, JJ., concur.