Sweeney's Admr. v. Pennsylvania Co.

Opinion by

Judge Hargis :

There is no bill of exceptions in this record, and we can not indulge in the presumption that the court required proof of unnecessary allegations of the petition or amendments, and therefore reverse the case. The court, if it erred in sustaining' the demurrer to the petition or first amendment, might not have required evidence at the trial of those matters which were deemed essential when the demurrer was heard, but seem not tO' be essential when the trial came on.

The presumption, therefore, is not that the court instructed the jury to find for appellee because nonessentials to appellant’s cause of action were not proved though alleged, but that no proof to sustain the action in any respect was introduced before the jury. This is the uniform rule which prevails in the absence of all evidence, unless the error is shown by the pleadings or record in such a way that the evidence could not, no matter what its character might be, authorize a different result.

The judgment is affirmed.