Gibson v. Montgomery

SAMFORD, Judge.

This action is brought under sections 9023 and 9024 of the Code of 1923, claiming as a penalty from defendant $400 for a failure to mark “satisfied” two certain mortgages executed by plaintiff and his wife, and which plaintiff claimed to have paid in full prior to the time he served notice in writing on defendant to satisfy the record.

The principal question, as contended for by plaintiff, is that the verdict of the jury was contrary to the preponderance of the evidence, and that the court should have rendered judgment for plaintiff.

(1) To begin with, the bill of exceptions, which purports to contain substantially all the evidence in the case, shows on its face that such is not the case, the most important omissions being a redemption deed from H. IT. Montgomery, as superintendent of banks, to the plaintiff, and the notices to satisfy the two mortgages. The bill of exceptions discloses that these were introduced in evidence, but they nowhere appear. In the absence of this evidence, we could not consider the refusal of the court to rule upon charges upon the effect of the evidence even if such charges had been requested.

(2) There is no motion for a new trial or requests for charges on the effect of the evidence. No rulings of the trial court having been invoked, this court has nothing upon which to base a ruling.

(3) On the contentions set out in assignments of error 1, 2, 3, 4, 5, 7, and 8, the evidence was in conflict and in each instance presented a jury question.

(4) Assignment of error 9 refers to a ruling of the court as shown on “Bottom of page 14.” There is no such ruling there recorded.

(5) Other assignments are equally without merit.

The judgment is affirmed.

Affirmed.