Williams v. First Farmers & Merchants Nat. Bank

185 So. 737 | Ala. | 1938

Lead Opinion

An affirmative instruction to find for the plaintiff is a charge upon the effect of the evidence.

Error cannot be presumed on appeal. It must affirmatively appear from the record.

It follows, this court cannot review the giving of the affirmative charge upon request in writing, unless the record on appeal affirmatively shows all the evidence considered by the trial court is presented to this court.

The present record does not purport to set out all the evidence in substance or effect.

The ruling complained of is, therefore, not subject to review. Fleming v. Ussery, 30 Ala. 282; Clardy v. Walker,132 Ala. 264, 31 So. 78; Peyton v. Apex Realty Co., 220 Ala. 81,123 So. 898; Stafford v. Jones, 224 Ala. 583, 141 So. 246; 2 Alabama Digest, Appeal and Error, p. 729, 927(6); 5 C.J.S., Appeal and Error, p. 361, § 1559.

Affirmed.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.

On Rehearing.

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Addendum

Application overruled.

GARDNER, THOMAS, BOULDIN, and FOSTER, JJ., concur.