Starkey v. Bryant
| Decision Date | 30 June 1952 |
| Docket Number | 8 Div. 571 |
| Citation | 59 So.2d 796,257 Ala. 557 |
| Parties | STARKEY v. BRYANT. |
| Court | Alabama Supreme Court |
Brown, Scott & Dawson, Scottsboro, for appellant.
H. G. Bailey, Boaz, for appellee.
This is an appeal from a judgment of the Circuit Court of Jackson County, Alabama, wherein plaintiff recovered $1,277.50 of defendant.
The case has been before the court on a former appeal from a judgment of nonsuit because of the lower court's action in sustaining demurrers to the complaint. We reversed because defendant's demurrer to counts one, two and seven were erroneously sustained. Bryant v. Starkey, 252 Ala. 21, 39 So.2d 291. After the cause was remanded, the case was presented to the jury on these counts, and verdict and judgment for plaintiff resulted.
As is demonstrated by our former opinion, the basis of the suit was an agreement concerning sale of cotton futures on the New York Exchange. In that appeal the law was laid down for the future guidance of the court. The issue raised by the pleadings was the illegality of the contract--specifically, whether the parties intended delivery of the cotton at some future time. The burden of proof was upon defendant. Bryant v. Starkey, supra.
Only two errors are assigned. The refusal of the affirmative charge to defendant, and the admission in evidence, over defendant's timely objection, of exhibits five and six.
Exhibits five and six are not copied in the record, nor has Supreme Court Rule 47 been complied with in respect to said exhibits. They being a part of the evidence before the trial court, a full record here requires their presence therein. Montevallo Mining Co. v. Underwood, 202 Ala. 59, 79 So. 453; Louisville & Nashville Railroad Co. v. Cross, 205 Ala. 626, 88 So. 908; Gossett v. Pratt, 250 Ala. 300, 34 So.2d 145. We are of course unable to say that the trial court erred in admitting them.
From the foregoing it affirmatively appears that all of the evidence introduced in the court below is not before this court. In dealing with the affirmative charge refused to defendant, the court must look to the strongest tendencies of the evidence for plaintiff.
In its final analysis we have before us a record which shows on its face that it does not contain all the evidence. Under these circumstances the refusal of the general charge is not open to review. Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708; Mathews Hardware Co. v. Allied Sales Corp., 19 Ala.App. 303, 97 So. 166;...
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Shelby County v. Baker
...hereto and made a part of this record.)' Supreme Court Rule 41 (Old Rule 47) has not been complied with in this respect. Starkey v. Bryant, 257 Ala. 557, 59 So.2d 796. See also Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891. There is still another reason why we think this assignment must fa......
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Thompson v. State
...Tit. 7, Appendix. We cannot say the trial court erred in admitting them. Butler v. Hughes, 264 Ala. 532, 88 So.2d 195; Starkey v. Bryant, 257 Ala. 557, 59 So.2d 796. Assignment of error 8 charges error in admitting a subpoena duces tecum to George Patterson. This exhibit also is not in the ......
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Lipscomb v. State, 7 Div. 208
...Court Rule 47, Code 1940, Tit. 7, Appendix, we cannot review the action of the trial court in admitting the exhibits. Starkey v. Bryant, 257 Ala. 557, 59 So.2d 796. One of the grounds of motion for a new trial was that during the progress of the trial 'certain individual jurymen chosen to t......
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Butler v. Hughes
...under Supreme Court Rule 41, Code 1940, Tit. 7 Appendix. We cannot, therefore, say the trial court erred in admitting it. Starkey v. Bryant, 257 Ala. 557, 59 So.2d 796. Appellant next contends that the court erred when it refused to permit him to bring out all of a conversation after the St......