Hanby v. Phillips-Buttorff Mfg. Co. , 12 Ala. App. 543 ( 1915 )

PELHAM, P. J.

Tbe record contains two assignments of error, tbe first being directed at tbe action of tbe court in overruling tbe motion of tbe appellant (who was tbe defendant in tbe court below) to- set aside a judgment nil dicit theretofore rendered against him. Tbe suit was on tbe common counts, to- which tbe defendant filed a plea of tbe general issue. Tbe defendant failing to appear and defend on tbe day the case was duly and regularly set and called for trial, a judgment by default or nil dicit was entered up against him, and, a jury having been demanded by tbe defendant, tbe issues as to- tbe amount of tbe debt due tbe plaintiff by tbe defendant Avere submitted to tbe jury and a judgment entered for $455.50 in conformity with tbe finding of tbe jury. About 29 days after this, tbe defendant filed a motion to set aside tbe judgment theretofore rendered against him, assigning death in tbe family of defendant and Ms counsel as tbe principal ground relied upon, judging from tbe argument contained in brief of appellant’s counsel.

Tbe bill of exceptions does not purport to contain all, or substantially all, of tbe evidence that was before tbe court on tbe bearing of tbe motion, or even its tendencies. Tbe recitals in tbe bill do show that tbe grounds for tbe motion, as set out in tbe motion, were called to' tbe attention of tbe court, together with tbe fact that tbe motion was sworn to; but whether this was all that was offered in support of or against tbe motion does not appear, and we may well assume, in this state of tbe record, in support of tbe court’s ruling in denying tbe motion, that tbe court bad evidence before it upon which it properly found tbe issues against tbe movant. Error must be' made to affirmatively appear, as appellate courts cannot presume error (C. of Ga. Ry. Co. v. Ashley, 159 Ala. 145, 48 South. 981), and it is tbe established rule to indulge all presumptions favorable to tbe correctness of tbe judgment or order of tbe lower court in order to sustain, and not to reverse, it (Richard v. Sterner Bros., 152 Ala. 303, 44 South. 562; Sou. Ry. Co. v. McGowan, 149 Ala. 440, 43 South. 378). Tbe bill of exceptions not purporting to contain all of tbe evidence offered before the court on tbe bearing of tbe motion, tbe presumption must be indulged that there was evidence before tbe court sustaining and justifying its conclusion in denying tbe motion.—M. & B. R. R. Co. v. L. & N. R. R. Co., 172 Ala. 313, 54 South. 1002; Cruise-Splawn L. Co. v. Sorrell, 165 Ala. 259, 51 South. 727.

We may add that tbe grounds of tbe motion, even if literally proven as set out, do not present a case where this court could say that it clearly appears that the lower court was in error in overruling the motion. Tbe ground based on one of tbe appellants and bis attorney baying attended tbe sick bed and funeral of a relative avers that they “had been at the bedside and funeral of this kinsman,” and such an allegation could have been fully met and satisfied by proof that the occasion of attending the sick bed and funeral of the kinsman had occurred some time previous to the trial or disposition of the case, and, if so, it furnished no good reason or excuse for their failure to attend upon the trial of the case when it was regularly called and disposed of by the court.

The complaint is in the code form for declaring on the common counts, and there is no merit in the second assignment of error, that it is not sufficient to support the judgment rendered.

Affirmed.