Massillon Engine & Thresher Co. v. Arnold & Co. , 133 Ala. 368 ( 1901 )

TYSON, J.

What purports to be a bill of exceptions in this record was signed by the presiding judge in vacation. Nothing appears in the record of the court below showing that any order was made by the court in term time, authorizing a bill of exceptions to be signed after the. adjournment of the 'court at which the trial was liad. The recital at the close of what purports to be the bill of exceptions: “Tendered and approved, this 15th day of April, 1901, within the. time prescribed by the court in which the bill of exceptions may be signed,” amounts to nothing more than the statement by the judge and is insufficient to supply the omission of so important mpiirement as the making of an order by the court. It cannot, therefore, be considered for any purpose. — Dantzler v. Swift Creek Mill Co., 128 Ala. 410.

With the paper purporting to be a bill of exceptions eliminated, all the assignments of error, except the 13th, are disposed of since they relate exclusively to exceptions reserved upon the trial to the rulings of the court upon the admission and exclusion of testimony and the refusal of written charges. The 13th assignment is predicated upon the failure of the jury in their verdict to assess each item of property in controversy separately. It is true that in suits involving the trial of right of property it is made the duty of the jury, if practicable, by their verdict to assess the value of each item of property involved separately. — Code, § 4143, and authorities cited thereunder. It is also true, if it is impracticable to assess the value of each piece of property involved, the jury are under no duty to do so. In the absence of all evidence on this point, we are bound to indulge the presumption that the jury did what is required of them. It is hut fair to assume that they found it impracticable to assess each item of the property found to belong to the plaintiff, being a “saw mill, consisting of boiler engine and fixtures.” Besides there appears by the recitals in the verdict to have been an agreement by which the jury were to be governed in their findings. The judgment entry shows that there was a contest. It recites an appearance in person by plaintiff and claimant and their respective attprneys, that the issue was made up under the direction of the court upon which there was a joinder. Clearly the only inference to be drawn is that the agreement referred to in the verdict ivas entered into hv the respective parties litigant or their attorneys during the progress of the trial, and that it had reference to the character of verdict the jury were to render. As the record at which we are authorized to look, does not contain a copy of this agreement, and nothing to the contrary appearing, we feel safe in indulging the presumption that it covered the very defect in the verdict, if it exists, now insisted upon. Doubtless the jury carried out the terms of that agreement whatever they were; at least we will so presume. The burden being upon appellant to affirmatively show error, we cannot presume its existence. On the contrary, the presumption must be indulged in favor of the correctness of the judgment appealed from.

Affirmed.