Everett v. Lister

Alabama Court of Appeals

Everett v. Lister

144 So. 119, 25 Ala. App. 231, 1932 Ala. App. LEXIS 184

CourtAlabama Court of Appeals

DecidedNovember 1, 1932

Docket7 Div. 852.

StatusPublished

Cited by1 cases

This text of 144 So. 119 (Everett v. Lister) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Everett v. Lister, 144 So. 119, 25 Ala. App. 231, 1932 Ala. App. LEXIS 184 (Ala. Ct. App. 1932).

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Opinion

BRICKEN, P. J.

This was a nonjury case, and was therefore tried by the court without a jury. The appeal *232 is from a judgment rendered in favor of appellee, defendant below. The demurrers to plea 3, as amended, were properly overruled.

Upon the trial below, the issue involved was purely one of fact; the facts being in dispute and the burden being on the plaintiff. It is a well-settled rule in the appellate courts of this state, where this is true, every reasonable presumption will be indulged in favor of the conclusions reached by the trial court. In other words, the evidence upon the trial being conflicting, the trial court’s conclusion will not be disturbed, it affirmatively appearing that such conclusion is not contrary to the great weight and preponderance of the evidence adduced upon the trial. Moreover, in this case it affirmatively appears from the record that there was other evidence before the court below not included or shown by the transcript before us. Where a bill of exceptions does not contain all the evidence, a conclusion of fact by the trial court will not be reviewed. Prine v. Am. Central Ins. Co., 171 Ala. 343, 54 So. 547; Northwestern Rug Mfg. Co. v. Russellville Furn. & Merc. Co., 22 Ala. App. 404, 116 So. 314.

From the record before us, we are of the opinion that the judgment rendered by the court is proper. A further discussion of the insistences of respective parties would avail nothing and will not be indulged.

Affirmed.

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BRICKEN, P. J.

This was a nonjury case, and was therefore tried by the court without a jury. The appeal *232 is from a judgment rendered in favor of appellee, defendant below. The demurrers to plea 3, as amended, were properly overruled.

Upon the trial below, the issue involved was purely one of fact; the facts being in dispute and the burden being on the plaintiff. It is a well-settled rule in the appellate courts of this state, where this is true, every reasonable presumption will be indulged in favor of the conclusions reached by the trial court. In other words, the evidence upon the trial being conflicting, the trial court’s conclusion will not be disturbed, it affirmatively appearing that such conclusion is not contrary to the great weight and preponderance of the evidence adduced upon the trial. Moreover, in this case it affirmatively appears from the record that there was other evidence before the court below not included or shown by the transcript before us. Where a bill of exceptions does not contain all the evidence, a conclusion of fact by the trial court will not be reviewed. Prine v. Am. Central Ins. Co., 171 Ala. 343, 54 So. 547; Northwestern Rug Mfg. Co. v. Russellville Furn. & Merc. Co., 22 Ala. App. 404, 116 So. 314.

From the record before us, we are of the opinion that the judgment rendered by the court is proper. A further discussion of the insistences of respective parties would avail nothing and will not be indulged.

Affirmed.

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144 So. 119, 25 Ala. App. 231, 1932 Ala. App. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-v-lister-alactapp-1932.

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