Lewis Land & Lumber Co. v. Interstate L. Co.

50 So. 1036, 163 Ala. 592, 1909 Ala. LEXIS 568

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

Opinion

DOWDELL, C. J.

This case was tried by the court below without the intervention of a jury, and a judgment was rendered in favor of the plaintiff. The defendant appeals, and the only assignment of error is the rendition of the judgment.

The bill of exceptions does not purport to contain all, or substantially all, of the evidence introduced on the trial. In Shafer & Co. v. Hausman, 139 Ala. 240, 35 South. 691, we said: “When on appeal the bill of exceptions fail-to recite that it contains all of the evidence, this court will presume any state of the evidence which Avill sustain the giving or refusal of an instruction to the jury by the trial court. — Postal, etc., Co. v. Hulsey, 115 Ala. 193 (22 South. 854) ; Sanders v. Stein, 128 Ala. 633 (29 South. 586); Randall v. Wadsworth, 130 Ala. 633 (31 South. 555). For the same reason this court will sustain the judgment of the trial court on the facts, where the cause is tried without a jury.” In the present instance the bill of exceptions fails to recite that it contains all of the evidence. The case of Southern Mutual Insurance Co. v. Holcomb's Adm’r, 35 Ala. 328, is in point as to the recital in the bill after the statement of the evidence in the case before us. On the authorities cited, the judgment appealed from must be affirmed.

Simpson, Anderson, McClellan, Mayfield, and Sayre, JJ., concur.