Johnson v. Straus Saddlery Co.

PELHAM, J. Judgment by default was rendered in the court below against C. L. Johnson & Son, a partpership, and O, V. Johnson, the appellant, individually, at the suit of appellee, on the ',18th. day of January, 1910; and more than 30 days thereafter, when, under the act creating the law and equity court of Mobile (Acts 1907, p. 572, § 23), the judgment must be treated as if rendered at a prior term of the court, the appel-' lant, on, to wit, July 30, 1910, filed and presented a sworn statement to the court-, alleging that he was a minor at the time the said judgment was rendered against him and that no guardian ad litem had been appointed by the court to appear and defend in his interest on the trial of the case, and praying that a writ of error coram .vobis be granted, and the judgment as to him be set aside or recalled and held for naught. Appellant’s petition was refused, and he appeals, assigning as error the order of the court in refusing to grant the petition. The right of courts in this state; of like jurisdiction to the law and equity court of Mobile, to issue the common-law writ of coram vobis has long been recognized (Holford v. Alexander, 12 Ala. 280; 46 Am. Dec. 253; Stewart v. Nuchols, 15 Ala. 231, 50 Am. Dec. 127), but whether or not the facts presented by the petition in this case make a proper showing for an issuance of the writ is a nice question.—Ingersoll v. Wilson, 3 Johns. (N. Y.) 437. That question, however, is not before us on this appeal, and we are precluded from considering it, as the petition in this case is not shown by the record to have been demurred to, and the bill of exceptions [304] fails to show any proof offered to sustain its allegations. The petition, although sworn to, is no more than a pleading in the case, and not proof of the matters set up in it, as contended by appellant. The record proper and the bill of exceptions show only that the petition was presented to the court and refused, against the objection of petitioner, and an exception reserved to the- action of the court in refusing the petition. No affidavits or other evidence was offered in support of the allegations of the petition, and for anything appearing to the contrary, the petition may have been refused on the ground that the petitioner failed to prove the allegations of his petition. There is nothing to show upon what the judgment of the trial court was predicated, and no way for this court to determine whether the conclusion arrived at in denying the petition is correct or erroneous on the merits of the question intended to be presented. Error cannot be presumed, but must be shown, and this court cannot assume or infer the existence of facts not shown by the record to put the trial court in error; presumptions are only indulged, in the absence of evidence to the contrary, to sustain, and not to reverse, the primary court.—So. Ry. Co. v. McGowan, 149 Ala. 440, 43 South. 378; Dickerson & Wayne v. Toulmin, 2 Stew. & P. 52; City of Mobile v. Murphree, 96 Ala. 141, 11 South. 201. No error appearing, the judgment of the trial court in refusing the petition is affirmed. Affirmed.