Mobile & Birmingham R. R. v. Louisville & Nashville Railroad , 172 Ala. 313 ( 1911 )

McCLELLAN, J.

The appeal is from an order granting a new trial. Among the grounds therefor was this: “Because, while viewing the premises, the judge allowed the witness Miller, in conversation with said judge, to review and argue the evidence on many of the material questions in controversy, and to point out and explain matters, some of which said witness was not competent to testify to, and others of which related to matters to which objection had been sustained during the trial, which said statements by said witness to the judge were made in such manner and under such circumstances that no report thereof could be made by the official stenographer, and no proper ohjection could be taken thereto by the attorneys in the cause, all as shown by an affidavit herewith filed.”

The bill of exceptions, in the particular that it refers to the motion for new trial, does not purport to contain all of the evidence offered before the court on the hearing of the motion. In such state of the case, the presumption must be and is indulged that there was evidence before the court justifying its conclusion, and ■the granting of the motion on the ground quoted.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.