Opinion
6 Div. 840.
April 19, 1923.
Appeal from Circuit Court, Cullman County; Robert C. Brickell, Judge.
W. E. James, of Cullman, and Culli Hunt, of Gadsden, for appellants.
Counsel discuss the errors assigned, but in view of the decision it is not necessary that they be here set out.
Paine Denson and A. A. Griffith, both of Cullman, for appellee.
The record fails to disclose in clear and positive terms that all of the evidence in the case is set out therein; hence it will be presumed that there was sufficient evidence to justify the judgment rendered by the court. Philips v. Smith, 18 Ala. App. 668, 94 So. 191; Stevenson v. Whatley, 161 Ala. 252, 50 So. 41; Graves Gross v. Leach, 192 Ala. 168, 68 So. 297.
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.