Walker, Stipp & Johnson v. Fletcher

SAMFORD, J. [1] Upon the authority of Henderson v. T. O. I. & R. R. Co., 190 Ala. 126, 67 South. 414, reaffirmed in Atlantic Coast Line Ry. v. Enterprise Cotton Oil Co. (Sup.) 74 South. 232-237, 1 and the case of Wilson v. Owens Horse & Mule Co., 14 Ala. App. 467, 70 South. 956, we are of the opinion that, in the absence of a statement in the record to the effect that there was evidence submitted to the jury tending to establish the case of the plaintiff, as stated in the complaint, it cannot be said that it appears from the record that the error complained of, i. e., the overruling of the denfurrers to special pleas, has probably injuriously affected the substantial rights ot the appellant. [2] For aught that appears from the record, the plaintiff may have failed to make out a case, and the verdict of the jury may have been based upon that failure. It cannot be said that this rule works a hardship, as the amendment to rule 32 (175 Ala. xxi) was doubtless designed to meet a case similar to tbis. We are conversant with the strong reasoning, as set forth in the opinion of Mr. Justice Sayre, in the case of Pratt et al. v. B. R., L. & P. Co., 191 Ala. 638, 68 South. 151, but it is the duty of the appellant not only to present a record which shows error on the part of the trial court, but also to make it appear that that error probably affected his substantial rights. In the absence of evidence tending to support his complaint, it does not so appear, and upon the authorities hereinabove cited the judgment of the circuit court is affirmed. Affirmed. Footnotes [1] 199 Ala. 57.