Sisson v. Pruitt

• Citation: 28 Ala.App. 341,183 So. 686
• Decision Date: 04 October 1938
• Docket Number: 7 Div. 381.
• Parties: SISSON ET AL. v. PRUITT.
• Court: Alabama Court of Appeals

183 So. 686

28 Ala.App. 341

SISSON ET AL. v. PRUITT.

7 Div. 381.

Court of Appeals of Alabama

October 4, 1938

Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.

Action for conversion by B. F. Pruitt against L. H. Sisson, T. J Watson, and others. From a judgment for plaintiff, the named defendants appeal.

Affirmed.

Ross Blackmon, of Anniston, for appellants.

Merrill, Jones & Merrill, of Anniston, for appellee.

PER CURIAM.

The suit was by a holder of a mortgage on crops grown during the year 1936 on lands belonging to Mrs. Poe. The plaintiff having recovered judgment in the court below, the defendants bring this appeal and present a record including a bill of exceptions signed by the Judge, which states in its conclusion that: "The foregoing constitutes all of the evidence offered at the trial."

However at the close of the court's oral charge there appears the following:

"The following written charge has been requested at the instance of the defendants, which is a correct statement of the law and is to be taken and considered by you in connection with the oral charge of the court.

"(Here the court reads the written charge to the jury.)"

There also appears in the bill of exceptions, in connection with the testimony of L. H. Sisson, one of the defendants, he being the mortgagor and the person who raised the cotton claimed in the complaint, the following: "At this juncture, Mr. Blackmon offered the entire testimony of L. H. Sisson to the jury in the other case."

Neither the charge given at the request of defendants, nor the transcript of the testimony of L. H. Sisson to the jury in the other case, appear in the record.

The only insistence of error relates to the refusal to give certain written charges requested, in writing, by the defendants. These charges relating to, and being dependent upon the evidence in the case.

In this state of the record we are driven, reluctantly, to the conclusion that a failure on the part of appellants to set out in the record and present to the court the written charges given at their request and read by the court to the jury prevents us from a review of the written refused charges insisted upon by the appellants. This ruling is sound and is based upon the theory well established in this jurisdiction that the burden is upon the appellant to show affirmatively that there was error; and when the record does not contain all of the charges, the court will presume the matters complained of were covered in charges given but not now contained in the record. DeBardeleben v. State, 16 Ala.App. 81, 75 So. 629; Parker v. State, 24 Ala.App. 72, 130 So. 525; Cert. denied Parker v. State, 222 Ala. 26, 130 So. 527.

While the bill of exceptions carries the recital...