Opinion
6 Div. 213.
October 23, 1924.
Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.
S. H. Sprott, of Tuscaloosa, for appellant.
Counsel argue the rulings on the trial, but in view of the opinion it is not necessary that the brief be here set out.
Monette, Taylor Dozier, of Birmingham, and Reuben H. Wright and Leigh M. Clark, both of Tuscaloosa, for appellees.
Where a bill of exceptions fails to show that it contains all the evidence, any state of evidence will be presumed to uphold the rulings of the trial court. Lewis Land Lbr. Co. v. Interstate Lbr. Co., 163 Ala. 592, 50 So. 1036; 1 Michie's Ala. Dig. 507. The granting or refusal of a continuance is within the discretion of the trial court, and not subject to review. Pensacola Co. v. Brooks, 14 Ala. App. 364, 70 So. 968; 1 Michie's Ala. Dig. 540; Strong v. Cathins, Adm'r, 37 Ala. 707; Wimberly v. Windham, 104 Ala. 412, 16 So. 23, 53 Am. St. Rep. 70; Murph v. State, 153 Ala. 67, 45 So. 208.
The bill of exceptions does not recite that it contains all of the evidence.
Where a case is tried and determined by the court without a jury, and the bill of exceptions does not purport to set out all of the evidence, this court will presume any state of the evidence to sustain the judgment rendered on the facts. 1 Mich. Ala. Dig. p. 506, § 907; 13 Mich. Ala. Dig. p. 151, § 907.
The granting or refusal of a continuance, under the circumstances, was within the discretion of the trial court, and such discretion was not abused. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Murph v. State, 153 Ala. 67, 45 So. 208; Wimberly v. Windham, 104 Ala. 409, 16 So. 23, 53 Am. St. Rep. 70; 1 Mich. Ala. Dig. p. 540, § 966.
The judgment is affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.