Carwile v. Carwile

131 Ala. 603 | Ala. | 1901

TYSON, J.

The court correctly excluded the statements of plaintiff as a witness, of what Norwood told him about demanding the cow of defendant and her refusal to surrender the possession of it. This ivas hearsay testimony.

The second, third and fourth assignments of error are predicated upon the rulings of the court in excluding the answers to certain questions, on the objection of defendant, which questions are shown by the bill of exceptions, but the excluded answers are not. Unless we presume error, we cannot affirm that the answers Avere responsive, material and relevant to the issue. This we cannot do. Error must affirmatively be shown and unless it is we must indulge ithe presumption, that it was not admitted. These ansAvers, to the exclusion of Avhic'h the exceptions Avere reserved, may have been irresponsive, irrelevant and immaterial and in order to put the court in error, the record should, at least, have negatived the presumption which Ave are bound to indulge to sustain the judgment appealed from.

There was testimony tending to shoAV that plaintiff and defendant had met for the purpose of adjusting and settling their respective claims to certain property Avhich resulted in an agreement that defendant should have the cow and calf in controversy. That in accordance with the terms of that agreement defendant took possession of the property. The charges refused to plaintiff ignore this phase of the testimony, which if believed by the jury, would authorize a verdict for defendant, without reference to which of them may have purchased the cow.

Affirmed.