
    (97 South. 738)
    BROWN v. SUTTON et al.
    (7 Div. 367.)
    (Supreme Court of Alabama.
    Oct. 18, 1923.)
    Appeal and error &wkey;>907(5) — Omission from bill of exceptions of deed material to the issue creates a presumption of the correctness of the ruling of the trial court.
    Where a bill of exceptions recites that it contains all the evidence, but a deed material to the issue and introduced in evidence has been omitted, it is presumed that the omitted conveyance justified the action of the court in giving an affirmative instruction in defendant’s favor.
    <g=oFor otner cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
    Action by W. T. Brown against Maude Sutton and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. P. Montgomery, of Afehville, and Starnes & Starnes, of Pell City, for appellant.
    It was error to give the affirmative charge for defendants.
    C. R. Robinson and J. A. Embry, both of Ashville, for appellees.
    No brief reached the Reporter.
   PER CURIAM.

The action is unlawful detainer, instituted, originally, in a justice’s court by appellant against appellees. Consequent upon general affirmative instruction in defendants’ favor, verdict and judgment were awarded defendants. The giving of that instruction and the refusal of a like character of instruction for plaintiff are the only errors assigned.

While the bill of exceptions carries the recital that it contains all of the evidence presented on the trial, from the body of the bill it affirmatively appears that that recital is untrue, a deed executed by plaintiff, very material to the issue, being introduced in evidence, and omitted from the bill and from the transcript. In this state of the bill of exceptions it is to be presumed that the omitted conveyance, executed by plaintiff, justified the action of the court in giving affirmative instruction in defendants’ favor. Jefferson v. Republic I. & S. Co., 208 Ala. 143, 93 South. 890, 892; Montevallo Mining Co. v. Underwood, 202 Ala. 59, 62, 79 South. 453; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 628, 88 South. 908.

Other considerations — unnecessary to note in view of the conclusions stated — might justify the court’s action.

The judgment is affirmed.

Affirmed.

ANDERSON, C. -J., and SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

Note. — The foregoing opinion was prepared by Justice McCLELLAN before his resignation, and is adopted by the court.  