Beard v. Du Bose

• Decision Date: 08 February 1912
• Citation: 175 Ala. 411,57 So. 703
• Parties: BEARD v. DU BOSE.
• Court: Alabama Supreme Court

57 So. 703

175 Ala. 411

BEARD v. DU BOSE.

Supreme Court of Alabama

February 8, 1912

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

Action by J. S. Beard against John Du Bose. Judgment for defendant. Plaintiff appeals. Affirmed.

Dowdell C.J., and Sayre, J., dissenting.

For dissenting opinion, see 63 So. 318.

Ball &amp Samford and Foster, Samford & Carroll, for appellant.

Boykin Owens, for appellee.

McCLELLAN J.

Statutory ejectment by appellant against appellee to recover a lot in the city of Troy, Ala. The court gave, at the request of the defendant, the general affirmative charge, with hypothesis in his behalf.

The bill of exceptions does not purport to set out or to contain all, or even substantially all, of the evidence before the trial court. This being the condition of the bill before the court in the present appeal, the following language of Chief Justice Dowdell, to be found in Lewis Land & Lumber Co v. Interstate L. Co., 163 Ala. 592, 593, 50 So. 1036, is apt, and its doctrine is decisive in the premises: "When, on appeal, the bill of exceptions fails to recite that it contains all of the evidence, this court will presume any state of the evidence which will sustain the giving or refusal of an instruction by the trial court." The quoted decision has been accepted as authoritative on the point noted in these subsequent decisions: Ventress v. Town of Clayton, 165 Ala. 349, 352, 51 So. 763; Lamar v. King, 168 Ala. 285, 289, 53 So. 279. In the last-cited decision (168 Ala. 285, 289, 53 So. 279, 281), it was said: "But, while the bill of exceptions was drawn in a way which indicates with a degree of probability that it contains the evidence upon which the case was tried, there is no formal statement that such is the case nor the equivalent of any such statement. This court has in a great number of cases rigorously applied the rule that, where a bill of exceptions fails affirmatively to show that it contains all the evidence, any state of the evidence will be presumed to uphold the rulings of the trial court. A case especially in point is Southern Mutual Ins. Co. v. Holcombe, 35 Ala. 327, followed recently in Lewis Land & Lumber Co. v. Interstate L. Co., 163 Ala. 592 ." The rule quoted ante is aptly supported by the following, among other, decisions delivered here: Barnes v. Mobley, 21 Ala. 232; Bradley v. Andress, 30 Ala. 80, 82; Lovett v. Chisolm, 30 Ala. 88, 90; Stein v. Feltheimer, 31 Ala. 57, 58; Com'rs v. Godwin, 30 Ala. 242, 244; Wyatt v. Stewart, 34 Ala. 716, 721, 722; Taylor v. McElrath, 35 Ala. 330, 333; Alexander v. Alexander, 71 Ala. 297; M. & E. Ry. Co. v. Kolb, 73 Ala. 405, 49 Am. Rep. 54; Keep v. Kelly, 29 Ala. 322, 324; Postal Tel. Co. v. Hulsey, 115 Ala. 193, 207, 22 So. 854; Shafer v. Hausman, 139 Ala. 240, 35 So. 691 (wherefrom the language in Lewis Land & Lumber Co. v. Interstate L. Co., supra, was taken); Sanders v. Stein, 128 Ala. 633, 634, 29 So. 586.

Applying, as must be done, the quoted rule to this appeal, error in the giving of the affirmative charge stated--the only assignment of error made--is not shown to have been committed.

It is suggested that the holding in Baker v. Patterson, 55 So. 135, requires a different conclusion. The writer having dissented therefrom, expressing at length his views upon the matter therein discussed, Justice Anderson, who did concur therein, has kindly written for the court in response to the suggestion stated, and so, as follows: "The majority of the court concur in the opinion, but do not wish to be understood as expressly or indirectly overruling the recent case of Baker v. Patterson, 55 So. 135. They think that there is a broad distinction between said case and the case at bar. In the Patterson Case, supra, there was the demand and a general denial of same--no special defense whatever; the only issue being the existence vel non of plaintiff's claim as set out in the complaint. Therefore under the issue as made by the pleading, and upon which the trial was had, it matters not what facts additional to those disclosed by the bill of exceptions either party may have proved, there would necessarily be a conflict as...