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Bickley v. Sherrod

Bickley v. Sherrod, 57 So. 1013 (Ala. Ct. App. 1912)
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Court
Alabama Court of Appeals · State Appellate Courts
Decided
February 6, 1912
Judges
Gnaffennied
Citations
57 So. 10133 Ala. App. 5451912 Ala. App. LEXIS 445
Disposition
Affirmed.
Headnotes
Assumpsit. 1. Bills of Exceptions; Construction. — Bills of exceptions are construed most strongly against the exceptor. ■ • 2. Appeal and Error; Presumptions. — Error is never presumed but. must be affirmatively shown on appeal. 3. Same; Absence of Evidence. — Where it is not shown that the bill of exceptions contains all the evidence, and in the absence of a contrary showing from the record, this court will presume that the trial court was justified in giving the affirmative charge from evidence in the case not shown by the record.
Summary
Appeal from Colbert Circuit Court. Heard before Hon. A. H. Alston. Assumpsit by B. W. Sherrod against E. L. Bickley. Judgment for plaintiff and defendant appeals. The court, erred in giving the affirmative charge as it should never be given where there is conflict' in the evidence or reasonable inferences may be drawn therefrom unfavorable to the right of recovery. — Peters v. Railroad Go., 135 Ala. 537; 5 Ma.yf. 150. Where the bill of exceptions does not purport to contain all the evidence and in the absence of a contrary showing from the record proper, the presumption will be indulged that there was evidence justifying the court in giving the affirmative charge. — Sanders v, Steen, 128 Ala. 663; Glardy v. Walker, 132 Ala. 264. .

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Gnaffennied

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db GNAFFENNIED, J.

In the case of Doe ex dem School Commissioners v. Godwin, 30 Ala. 242 , the Supreme Court lays down the following propositions as definitely settled: (1) That bills of exceptions are to be construed most strongly against the exceptor. (2) That error will not be presumed, but must be affirmatively shown. (3) That when an affirmative charge is given, which is correct as an abstract legal proposition, this court will presume there was evidence to justify the charge, unless it affirmatively appears to the contrary. The above rules have not, so far as we are informed, been at any time departed from.

In the present case the bill of exceptions fails to show that' it sets out all of the evidence. It is. therefore impossible for this court to say that the trial court erred in giving the affirmative charge to the jury, which the plaintiff requested it in writing to give, for the simple reason .that, taking the bill of exceptions most strongly against the exceptor, it is not shown that it contains all of the evidence. —Evansville, etc., Packet Co. v. Slater, 101 Ala. 245 , 15 South. 241 ; Sanders v. Steen, 128 Ala. 633 , 29 South. 586 ; Clardy v. Walker, 132 Ala. 264 , 31 South. 78 .

The judgment of the court below is affirmed.

Affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1916: 119162026peak 1916 · 1

Relies on it most ⓘ

  1. Davenport v. State73 So. 209 (Ala. Ct. App. 1916)

Most recent

  1. Davenport v. State73 So. 209 (Ala. Ct. App. 1916)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Clardy v. Walker, 31 So. 78 (Ala. 1901) 31
Sanders v. Steen, 128 Ala. 633 (1900) 24
Doe ex dem. Sch. Comm'rs v. Godwin, 30 Ala. 242 (1857) 18
Evansville, Paducah & Tenn. River Packet Co. v. Slater, 101 Ala. 245 (1893) 13

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