Perry v. Danner & Co.

SOMERYILLE, J. — It may now be considered as the settled construction of section 3112 of the present Code (1876),. [487] that when a voluntary nonsuit is taken by a plaintiff, under its provisions, in consequence of an adverse ruling on demurrer, such ruling on demurrer can not be reviewed in this court under this section, which is identical with section 2759 of the Revised Code of 1867. — Mathis v. Oates, 57 Ala. 112, and cases cited. Decisions upon pleadings, which are matters of record, and not the subject of a bill of exceptions, are not revisable undér this statute. — Rogers v. Jones, 51 Ala. 353; Vincent v. Rogers, 30 Ala. 471. "We can not see that the court erred in excluding the evidence alleged to have been offered by the appellant, in support of the averments of the complaint. The record fails to show what was the nature or character of this evidence. Nor is it even stated that it was either relevant or material to the issue in dispute, or that it was not mere hearsay. We are not authorized to assume any of these facts, in order to pot the court below in the attitude of making an erroneous ruling. The judgment must be presumed to be free from, error, unless the record affirmatively shows the contrary. Affirmed.