Massey v. Smith

| Ala. | Dec 15, 1882

BRIOKELL, C. J.

— The rule is settled by numerous decisions of this court, as is stated by the counsel for the appellant, that if specific grounds of objection are taken to. the admissibility of evidence, a waiver of all other objections is presumed, and on error this court will confine its decision to the grounds specified: — 1 Brick. Dig. 887, § 1194. • If it be the proper construction of the bill of exceptions, that the objection to the introduction as evidence of the record of the proceedings of the court of probate was confined to the specific ground, that the depositions remaining on file in that court showed that they were not taken as in chancery cases, and did not make proof of facts which authorized the court to render a decree of sale, the objection was not well taken, and ought' not to have been sustained; and though the record could have been excluded for other reasons, a reversal of the judgment would follow. By its decree, the court of probate ascertained and declared the depositions were taken as in chancery cases, and that the facts were proved, the incapability of the lands of a fair and equitable division among the heirs. The decree was final and conclusive upon these matters, when collaterally assailed, and could not be impeached by a reference to the depositions upon which the court proceeded.- — Pettus v. McClannahan, 52 Ala. 55" court="Ala." date_filed="1875-01-15" href="https://app.midpage.ai/document/pettus-v-mcclannahan-6508943?utm_source=webapp" opinion_id="6508943">52 Ala. 55.

But we are unable to declare that the bill of exceptions shows, clearly and affirmatively, that this was the specific ground of objection to the evidence. The recital of the bill is, that “the plaintiff objected to the order of sale, for reasons stated by him, and, in support of his objection, read to the court, and offered in evidence, the following interrogatories,” etc.; and concluded, “the court, under this evidence, sustained the objections, and the defendant excepted,” A bill of exceptions is construed most strongly against the party excepting, and, when it admits of two constructions, one of which will reverse, and the other affirm the judgment, that which will affirm must be adopted. — 1 Brick. Dig. 251, §§ 120-23. The language of the bill, to say the least, is as consistent with the supposition, that more than one ground or reason was stated as the cause of objection to the admissibility of the order of sale, as that one only was stated. We can not place the circuit court in error, by indulging the presumption that one only was stated. Prima facie, the decree of sale was wholly irrelevant — no party to this suit appears to have had any connection with it, or any interest involved in it. As to them, it was res inter •alios acta; and the bill of exceptions not expressly negativing, we must presume for this reason the circuit court rejected it.

Affirmed.