Jonas Schwab & Co. v. Hall

McCLELLAN, j. The action was for money had and received. Trial by the judge without the jury, and judgment for plaintiff for a sum in excess of set-off pleaded and sustained. The bill of exceptions purports to set out tendencies of the evidence, though it does conclude with the recital that “upon this evidence, which is substantially all the evidence given on the trial of said cause.” This state of the bill renders it equivocal whether the hill does contain all of the evidence, which doubt, if so, we must resolve against the party bringing up the bill. We cannot, therefore, review the court’s conclusion on the main trial. The motion to retax the costs, under the motion to that end, should have been sustained, as was held in Fuller v. Hunter, 34 Ala. 56. The action of the court in overruling the motion to retax cost is reversed, and the cause is remanded, that the court below may di spose of the motion in accordance with our conclusion. Reversed and remanded. Tyson, C. J., and Dowdell and Anderson, JJ., concur.