Richards v. William Beach Hardware Co.
Decision Date | 09 April 1942 |
Docket Number | 4 Div. 230. |
Citation | 7 So.2d 492,242 Ala. 535 |
Parties | RICHARDS v. WILLIAM BEACH HARDWARE CO. |
Court | Alabama Supreme Court |
[Copyrighted Material Omitted]
Roy L. Smith, of Phenix City, for appellant.
J.B. Hicks, of Phenix City, for appellee.
The rule in this jurisdiction is stated in Wilson et al. v Horton, 212 Ala. 87, 89, 101 So. 740, 741, as follows:
Some of the material evidence on the controverted issue is not contained in the record before us in this case, but was before the trial court. The presumption on appeal is that there was evidence sufficient to justify the conclusion embodied in the decree from which the appeal is taken. Taylor v. Hoffman, 231 Ala. 39, 163 So. 339; Wood v. Wood, 119 Ala. 183, 24 So. 841; Haygood v. Manley, Ala.Sup., 6 So.2d 887; Chandler v. Owens, 235 Ala. 356, 179 So. 256.
The omission of material evidence is thus stated by counsel:
The note of submission shows that this evidence was lost without the fault of either party. Will this motion serve as a bill of review or a bill in the nature of such bill? Code 1940, T. 7, Rule 66, p. 1099; Sim's Chancery Practice, §§ 629-640.
In Rochelle v. Rochelle, 237 Ala. 530, 187 So. 451, 452, the definition and purpose of such pleading is well stated as follows: * * *."
The motion in question does not show any newly discovered evidence within the rule, but indicates the loss of the evidence without knowledge, consent or connivance of either counsel, the Judge or the clerk, and that no fraud is charged as to either of said parties. Hence the motion will not serve the purpose of such a bill of review. The motion should have been granted, but the action of the trial court in denying the same is not reviewable on appeal.
We must look to the record under the issues formed, the evidence before the court and the original papers certified to this court by the trial judge to ascertain whether or not a lien exists on the several lots indicated which are on different streets in the town of Phenix City.
The delivery tickets exhibited show by endorsements thereon that the material, used by the contractor in making the several repair jobs, was delivered at No. 701 on 13th Street in Phenix City, which was neither of the lots on which improvements were made. While a map of the city is not included in the record, it is apparent that some of these lots are not contiguous or adjacent to each other, being on different streets.
The lien alleged to have been filed in the probate office is as follows:
The date of its filing in the probate office is not indicated. The same was verified of date of October 21, 1939, and the exhibits supporting the pleading are of date of August, 1939. The delivery slips are of date of August 26, 1939, made to 701 13th Street, Phenix City. It is alleged in such slip that the same was bought by Mr. Clay of Home Improvement Company. A comparison of these delivery slips and Exhibit "A" will show the same articles, purchase price thereof and that the name and address of such purchase and delivery was to Home Improvement Company, 701 13th Street, Phenix City, Alabama.
There are no demurrers challenging the sufficiency of the bill supported by the exhibits. Grimsley v. First Ave. Coal & Lmbr. Co., 217 Ala. 159, 115 So. 90.
The respondent Otis Richards was not represented by counsel, and the answer he filed is as follows:
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