6 Div. 840. | Ala. | Apr 19, 1923
Detinue for two mules, instituted by appellants, mortgagees of the mules by the Ingrams, against appellee. The trial was by the court without jury. The evidence was delivered orally, the court concluding in defendant's favor. The only errors assigned question the correctness of that conclusion.
The bill of exceptions does not show, affirmatively, that it contains all the evidence or substantially all of the evidence presented on the trial, in view of which omission the presumption on appeal is that there was evidence justifying the court's conclusion on the facts. 1 Mich. Dig. Ala. Rep. pp. 506, 507, § 904 (4). There is this recital near the end of the bill of exceptions: "I have here all the evidence." It is evident that this recital is not referable to the judge who tried the case. Doubtless it was intended to refer to counsel who prepared the bill of exceptions and tendered it to the judge for his signature. Certainly the effect of the recital is not, in any sense, the equivalent of the usual and often necessary recital in the bill that the evidence set forth in the bill is all or substantially all of the evidence presented on the trial.
Consequently upon the presumption stated, an affirmance must be entered.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.