Lewis Land & Lumber Co. v. Interstate Lumber Co.

• Decision Date: 16 December 1909
• Citation: 163 Ala. 592,50 So. 1036
• Parties: LEWIS LAND & LUMBER CO. v. INTERSTATE LUMBER CO.
• Court: Alabama Supreme Court

50 So. 1036

163 Ala. 592

LEWIS LAND & LUMBER CO. v. INTERSTATE LUMBER CO.

Supreme Court of Alabama

December 16, 1909

Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.

Action by the Interstate Lumber Company against the Lewis Land & Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Gregory L. & H. T. Smith, for appellant.

Stevens & Lyons, for appellee.

DOWDELL, C.J.

This case was tried by the court below without the intervention of a jury, and a judgment was rendered in favor of the plaintiff. The defendant appeals, and the only assignment of error is the rendition of the judgment.

The bill of exceptions does not purport to contain all, or substantially all, of the evidence introduced on the trial. In Shafer & Co. v. Hausman, 139 Ala. 240, 35 So. 691, we said: "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 to the jury by the trial court. Postal, etc., Co. v. Hulsey, 115 Ala. 193 ; Sanders v. Stein, 128 Ala. 633 ; Randall v. Wadsworth, 130 Ala. 633 . For the same reasons this court will sustain the judgment of the trial court on the facts, where the cause is tried without a jury." In the present instance the bill of exceptions fails to recite that it contains all of the evidence. The case of Southern Mutual Insurance Co. v. Holcombe's Adm'r, 35 Ala. 328, is in point as to the recital in the bill after the statement of the evidence in the case before us. On the authorities cited, the judgment appealed from must be affirmed.

Affirmed.

SIMPSON, ANDERSON, McCLELLAN, MAYFIELD, and SAYRE, JJ., concur.