Everett v. Lister

BRICKEN, P. J. This was a nonjury case, and was therefore tried by the court without a jury. The appeal *232 is from a judgment rendered in favor of appellee, defendant below. The demurrers to plea 3, as amended, were properly overruled. Upon the trial below, the issue involved was purely one of fact; the facts being in dispute and the burden being on the plaintiff. It is a well-settled rule in the appellate courts of this state, where this is true, every reasonable presumption will be indulged in favor of the conclusions reached by the trial court. In other words, the evidence upon the trial being conflicting, the trial court’s conclusion will not be disturbed, it affirmatively appearing that such conclusion is not contrary to the great weight and preponderance of the evidence adduced upon the trial. Moreover, in this case it affirmatively appears from the record that there was other evidence before the court below not included or shown by the transcript before us. Where a bill of exceptions does not contain all the evidence, a conclusion of fact by the trial court will not be reviewed. Prine v. Am. Central Ins. Co., 171 Ala. 343, 54 So. 547; Northwestern Rug Mfg. Co. v. Russellville Furn. & Merc. Co., 22 Ala. App. 404, 116 So. 314. From the record before us, we are of the opinion that the judgment rendered by the court is proper. A further discussion of the insistences of respective parties would avail nothing and will not be indulged. Affirmed.