Kirksey v. Hardaway

41 Ala. 330 | Ala. | 1867

BYRD, J.

1. The administrator of Dew not having taken an appeal, and the errors assigned by his counsel not having been assigned by consent of all the adverse parties, and there being no joinder in such assignments, they will be treated as a nullity, and will not be considered by this court.

2. The bill of exceptions does not purport to set out all the evidence introduced on the hearing of the motion, but states that, “ upon the foregoing evidence, said court decided,” &c. This expression is equivalent to the word “thereupon,” used in the case of The Southern Marine Ins. Co. v. Holcombe, (35 Ala. 327,) and the expression, “ upon this state of proof,” used in the case of Henley v. Lee, decided at the January term, 1867. In the case from 35 Ala., the word “ thereupon ” evidently referred to the foregoing evidence set out in the bill of exceptions in that case ; and in the case of Henley v. Lee, the words, “ upon this state of proof,” as evidently referred to the evidence set out in the record ; yet both were held to be insufficient, as an assertion affirmative of the proposition, that all the evidence was set out in the bill of exceptions. It is a stringest rule; but it has been so long established, that we do not feel at liberty to depart from it. That the court decided a question upon the evidence stated in the bill of exceptions, is not an affirmation that the evidence set out therein was all that was introduced; nor does it bind us to pass upon the same facts, in the absence of an averment in the bill that the evidence set out was all that was introduced. The court may have decided erroneously, upon the facts stated, and yet have decided right, if all the facts had been contained in the bill, which were in proof on the hearing. We conceive that the principles settled in the following adjudications, are applicable to this case, and are conclusive: Keep v. Kelly & Levin, 29 Ala. 322; Bradley v. Andress, 30 Ala. 80; Lovett v. Chisholm, 30 Ala. 88, and authorities therein cited; Southern Marine Insurance Co. v. Holcombe, 35 Ala. 327; Henley v. Lee, decided at the January term, 1867.

A bill of exceptions is construed most strongly against the party excepting, and he is bound to show error affirmatively, else the decision of the court below must be affirmed. Doe, ex dem., v. Godwin, 30 Ala. 242.

Let a judgment of affirmance be entered.

JUDGE, J.

I concede it to be a salutary rule of construction, that a bill of exceptions must be construed most strongly against the party excepting. But, in the enforcement of this rule, the construction, in all cases, should be a reasonable one. When the action of the court is stated to be, “ upon the foregoing evidence,” I think a fair and reasonable construction authorizes the conclusion, that it was upon the evidence stated, and that alone, that the court acted; and it is not, in my opinion, a fair or reasonable construction in such case, to presume that the action of the court was predicated, not only upon the evidence stated, but also upon other evidence not stated. I concede that the previous decisions of this court have gone a long way towards sustaining, if they do not justify, the ruling of the majority of the court in the present case. But I am opposed to the application of those decisions to analogous cases, when the result is the enforcement of what I consider so unreasonable a rule of construction, as that obtaining in the present case.