Phillips v. Jackson , 190 Ala. 586 ( 1914 )

SOMERVILLE, J.

The only question argued in brief of counsel, and, indeed, the only question in the case, is upon the admissibility of a certain written instrument as a muniment of title in favor of the plaintiff.

(1) Whatever may be the nature and effect of this writing, the bill of exceptions does not show any ruling nor any exception taken in the court below with respect to its introduction and use as evidence. Hence the first four assignments of error are without the necessary foundation in the record. — Stuart v. Mitchum, 135 Ala. 546, 551, 33 South. 670; L. & N. R. R. Co. v. Binion, 107 Ala. 645, 18 South. 75.

(2, 3) Whether or not the judgment was rendered contrary to the law or the evidence, we could not determine without all the evidence before us; and, consistently with the recitals of the bill, there may have been other evidence before the court than what is shown by the bill. Nor, as to the other ground, can a motion for new trial, because of illegal evidence admitted, secure a review of its admission in the absence of an exception seasonably reserved during the trial. — Tobias v. Treist, 103 Ala. 664, 15 South. 914.

Moreover, the assignment of error is not argued by counsel and must be treated as waived.

Upon these considerations, we are' constrained to an .affirmance of the judgment appealed from.

Affirmed.

Anderson, C. J., and McClellan and Mayfield, JJ., concur.