Bartee v. James

33 Ala. 34

• Court: Supreme Court of Alabama
• Decided: June 15, 1858
• Status: Published

Opinion

BICE, C. J.

—This is one of the appeals which section 1891 of the Code requires us to try on the hill of exceptions.—Turner and Wife v. Key’s Adtn’r, 31 Ala. 202.

“The rule is well settled, that a party, asking the action of the court on any subject, must be prepared to sustain the action demanded in the precise terms in which the request is made; and the refusal of a court to act in the manner requested will not be error, although a portion of the request might have been properly granted, and should have been, if asked independent of the other part.”—Carmichael v. Brooks, 9 Porter, 330.

Under that rule, we cannot reverse tbe decree in the present case, on account of the overruling of the motion of appellants to suppress “the depositions, of Hiram James and William G-. James.” They put their motion on a specified ground, to-wit, the failure to answer the third and fourth cross-interrogatories; and by putting it on that specified ground, they waived all other grounds. Creagh v. Savage, 9 Ala. R. 959. The specified ground must fail in toto, because it certainly is not good in part, to-wit, as to the deposition of Hiram James. He certainly has sufficiently answered the third and fourth cross-interrogatories. We do not decide what should have been done, if the motion had sought the suppression of the deposition of William G. James only. The motion asked the suppression of both depositions, which was clearly asking too much, and which therefore justified the court in overruling it in toto.—Walker v. Smith, 28 Ala. 569.

The trial was by the probate judge, without the intervention of a jury. The bill of exceptions purports to set forth “substantially all the evidence in the cause;” and by agreement of counsel, the law of North Carolina therein referred to, forms part of it. The bill shows that the plaintiff read as evidence the “ 5th volume of Porter’s Beports of the supreme court of Alabama;” and that the appellants objected to its being read “ for the purpose of proving any fact or facts;” but the bill utterly fails to show that it was offered, admitted, or read for any such purpose. Construing the bill most strongly against the party excepting, as we are bound to do, we cannot say that the 5th volume of Porter’s Reports was admitted as evidence to prove any fact or facts. Their saying that they objected to its being read for such a purpose, does not prove, as in their favor, that it was read for any such purpose. And we cannot put the court below in error, by construction or intendment, especially when, as here, the trial was by the judge himself, and when the 5th volume of Porter’s Reports might have been read as evidence to him of some part of the law of Alabama, which h.e deemed important in the case. To justify us in reversing a decree of the court below, it is not enough that we do not see that its action was right; we must see that its action was wrong. Parties who seek the reversal of judgments, cannot gain anything by obscurity or uncertainty in the statement of the precise point decided in the primary court. "With these views, we cannot reverse upon the statement contained in the bill of exceptions in relation to 5th Porter’s Reports. There may possibly have been error in that respect, but it is not made to.appear with sufficient clearness.

Ihe bill of exceptions does not show that any issue was joined as to the allowance of compensation and attorney’s fees to the administrator, nor that any such allowance was made: we therefore decide nothing as to such allowance. As we are required to try the case on the bill of exceptions, we cannot look to other parts of the transcript for supposed errors not disclosed in the bill itself. And as it fails to point out or disclose with sufficient clearness anything which justifies us in reversing, we must affirm the decree.