Dailey v. Fountain, 35 Ala. 26

Dailey v. Fountain

35 Ala. 26 | Ala. | 1859

Lead Opinion

STONE, J.

The true boundary between the plaintiff and defendant was one of the controverted questions in this cause. “ Evidence of the field-notes of the survey of the section of land in which the fence in controversy is situated, and the evidence of a survey made according to said field-notes by a county surveyor of Monroe county, and evidence that the plaintiff had notice of the survey so made by the county surveyor of Monroe county,” if unobjectionable as to the medium through which these facts were sought to be established, were certainly pertinent and material, and should have been received for the purpose of showing defendant’s title,and the actual boundary of his land, and that said fence was upon his land. *29Whether’ such testimony, when received, would have been sufficient, is not for our determination. — Code, § 818.

[2.] As we understand the bill of exceptions, no question can be here made on the instruments of proof. The offer was to prove certain facts, and we are not informed in what manner they were sought to be proved. The court refused to receive the evidence. "We think the bill of exceptions admits of no other construction, than that the objection was to the facts sought to be proved, and not that the evidence was in form secondary. Thus construed, the evidence was admissible under section 818 of the Code.

Reversed and remanded.

Dissenting Opinion

A. J. ’WALKER, C. J.

I dissent froni the opinion of the majority of the court in this case. Every reasonable intendment is to be made in favor of the ruling of the court beloiv. A bill of exceptions must be understood most strongly against the party excepting. All decisions are presumed to be correct, until the contrary appears.— Holmes v. Gayle & Bower, 1 Ala. 517; Long v. Rogers, 19 Ala. 321; Nash v. Shrader, 27 Ala. 377. Construing the bill of exceptions in the light of those rules, I understand is as simply showing that an offer was made to “introduce” the field-notes and the survey delineated on paper. Neither was admissible, in the absence of preliminary evidence, any more than any other instrument of writing would be. — Nolen v. Parmer, 21 Ala. 66. In my opinion,consistency with established principle requires us to intend rather the absence of the preliminary proof, which would affirm the judgment, than its presence, which reverses it.