May v. Lewis , 41 Ala. 315 ( 1867 )

BYRD, J.

The bill of exceptions recites, that, “ under the facts stated within, the court held and ordered, that all the money be appropriated to the execution in favor of Hargrove”; to which the appellants excepted. This bill is defective, in not showing, affirmatively, that all the evidence introduced on the hearing of the motion is set out; a defect of very frequent occurrence. This court has often held, that it will not revise the decision of the court below, upon the evidence, unless the record shows that it is all set out in the bill of exceptions.

The assertion that, “under the facts stated within,” taking the word “ facts” in the acceptation of the term evidence, is not equivalent to the expression “ that all the evidence is stated within.” In the case of Raines’ Adm’r v. Raines’ Creditors, (30 Ala. 426,) this court held the phrase, “ upon this testimony, the plaintiff asked the court for a decree in his favor,” was not sufficient, and said : “ In such case, we can not presume there was no other evidence before the court.” In the case of The Southern Mar. Ins. Co. v. Holcombe, (35 Ala. 327,) the court held, that the word “ thereupon,” coming immediately after the evidence set out in the bill of exceptions, was not sufficient to authorize this court to presume that all the evidence was set out in the bill. In the case of Fickling v. Brewer, (38 Ala. 685,) neither the report of the case, nor the opinion of the court, shows what was the expression used in the bill of exceptions; but, by reference to the record on file, it appears that it is, “on this proof,” which immediately followed the evidence set out; and this was held insufficient as an averment that all the evidence was set out. In the case of Henley v. Lee, at the last term, this court held, that the assertion, “on this state of proof,” was insufficient. The case of The Southern Marine Ins. Co. v. Holcombe, supra, was cited, and, to that extent, re-affirmed as authority, in the case of Ward v. Cameron’s Adm’rs, 37 Ala. 691. The case of Bradley v. Andress, 30 Ala. 80, is a case strikingly in point, on the presumptions indulged by this court in favor of the action of the courts of inferior jurisdiction. And in the case of Taylor v. McElrath, (35 Ala. 332,) the chief-justice' lays down, with much exactness of statement, the doctrine on this question.—See, also, Cotten v. Bradley, 38 Ala. 506 ; Kirksey v. Hardaway, Briggs v. Cribbs, and Hays, ex’r, v. Cockrell, decided at this term; Guilford v. Hicks, 36 Ala. 95.

Upon the reasoning and authority of the decisions referred to, the ruling of the court below must be affirmed.

Judge, J., dissenting.