Brandenberg v. Sovereign Camp, W.O.W.
| Decision Date | 18 October 1923 |
| Docket Number | 6 Div. 750. |
| Citation | 210 Ala. 380,98 So. 126 |
| Parties | BRANDENBERG v. SOVEREIGN CAMP, W. O. W. |
| Court | Alabama Supreme Court |
Rehearing Denied Dec. 6, 1923.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Action by Judson A. Brandenberg, as administrator of th estate of Mamie Greene Brandenberg, deceased, against the Sovereign Camp of the Woodmen of the World. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed.
William Vaughn and Louis Silberman, both of Birmingham, for appellant.
C. H. Roquemore, of Montgomery, for appellee.
When a motion for new trial is granted, and that action is referable to the court's conclusion that the verdict was contrary to the evidence, the judgment granting a new trial will not be reviewed on appeal unless the bill of exceptions presents all the evidence that was before the trial court, as to which the bill must contain an affirmative recital.
Here the bill of exceptions affirmatively shows that there was before the court "record evidence introduced by the defendant," the nature of which does not appear. As to what that evidence was, what it tended to show, and what its probative influence was, we are not allowed to conjecture. Certainly we cannot say that the conclusion of the court upon the whole evidence was erroneous.
The effect of the omission of this evidence from the bill of exceptions cannot be avoided by the recital of the bill that it was removed from the files by defendant's attorney and was not returned in time for incorporation in the bill. So far as appears, it may have been removed with the knowledge and consent both of plaintiff and the court; and, in any case, plaintiff had his remedy to compel its restoration, or else could have stated in the bill the substance of the missing documents.
As the record stands, we can do nothing but affirm the judgment of the trial court.
Affirmed.
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Smith v. State
...of the evidence to support the judgment. Bonds v. Cooke & Wood Construction Co., 37 Ala.App. 580, 72 So.2d 856; Brandenberg v. Sovereign Camp, W.O.W., 210 Ala. 380, 98 So. 126; 2 Alabama Digest, Appeal & Error, k706(5), Assignment of Error No. 4 challenges the jurisdiction of the trial cour......
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