Hurst v. Rudder-Adams Mill Co.

51 So. 519, 164 Ala. 504, 1909 Ala. LEXIS 289

• Court: Supreme Court of Alabama
• Decided: December 16, 1909
• Status: Published

Opinion

McCLELLAN J.

Action by appellee against appellants to enforce lien for materials furnished in construction of a building. The appeal is on the record alone. The judgment is valid on its face. It shows that the parties were before the court at the time the judgment was rendered. The argument of counsel for appellant seems to be that error infected the proceeding because of the asserted failure to take a jury’s verdict on the question, whether there was a debt due the plaintiff for materials furnished, and, if so, how much, and whether the plaintiff had a lien therefor.

Section 4770 of the Code contemplates a trial of these issues by the court without a jury, or by a jury. The record (there is no bill) does not negative a tvaiver of a submission of the issues to the jury. To sustain the' judgment we will presume, if necessary, that the right to a jury trial was waived. The judgment is affirmed on the errors assigned and argued here.

Affirmed.

Anderson, Sayre, and Evans, JJ., concur.