Bridges v. Cribbs

41 Ala. 367

Opinions

BYRD, J.

The bill of exceptions does not show that all the evidence introduced on the hearing of the motion is set out; nor can we say, from the judgment-entry made by the court, that all the evidence is set out in the bill of exceptions.—Southern Mutual Ins. Co. v. Holcombe, 35 Ala. 327; Henley v. Lee, at January term, 1867; Kirksey v. Hardaway, at present term. The bill of exceptions states, that, “ on the foregoing testimony, the court set aside the sale.” This is not a sufficient averment that all the evidence introduced on the hearing of the motion is set out. The words, “ on the foregoing testimony,” are not conclusive against the party excepting. If the decree of the court showed, or if it appeared otherwise from the record, that all the evidence was set out, it would be sufficient, although the bill of exceptions stated that the court decided upon “ the foregoing testimony.”

This construction of the bill of exceptions, we admit, is rigid and stringent; and we would take a more liberal one, if the question was res integra. But, to do so, we would have to overrule the case of The Southern Mutual Ins. Co. v. Holcombe, (35 Ala. 327,) and some of the cases cited therein, and others since decided; and this we are not prepared to do, on a question of practice so long established by the decisions of this court.—Bradley v. Andress, 30 Ala. Rep. 80.

A bill of exceptions is construed more strongly against the exceptant; and we can not regard the assertion made in this bill as an affirmation that all the evidence introduced on the hearing of the motion is set out therein. The party excepting must affirmatively show error, to entitle himself to a reversal of the action of the inferior court.—McReynolds v. Jones, 30 Ala. 101; School Commissioners v. Goodwin, 30 Ala. 242.

The judgment is affirmed.