
    Lewis Land & Lumber Co. v. Interstate L. Co.
    
      Assumpsit.
    
    (Decided Dec. 16, 1909.
    50 South. 1036.)
    
      Appeal mid Frror; Finding of Trial Court; Review; Presumption. — Where a case is tried and determined by a court without the intervention of a jury, and the bill of exceptions does not purport to set out all of the evidence, this court, will, on appeal, presume any state of the evidence to sustain the judgment of a trial court on the facts.
    Appeal from Mobile Law and Equity Court.
    Heard before Hon. Saffold Beeney.
    
      Assumpsit by the Interstate ' Lumber Company against tbe Lewis Land & Lumber Company. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Gregory L. & H. T. Smith,i for appellant.
    Counsel discuss errors assigned, and cite authority in support of their contention. But do not discuss the matters decided.
    Stevens & Lyons, for appellee.
    Where the court tries a cause without a jury, and the bill of exceptions does not purport to set but all of the 'evidence, the Supreme Court will presume any state of the evidence to sustain the action of the trial court. — Postal T. Go. v. Hulsey, 115 Ala. 197; Sanders v. Steen, 128 Ala. 623; Randall v. Wadsworth, 130 Ala. 633; Schafer v. Hausman, 130 Ala. 240. The bill of exceptions did not purport to set out all of the evidence. — Southern M. I. Go. v. Holcomb, 35 Ala. 328, and authorities supra.
   DOWDELL, C. J.

This case was tried by the court below without the intervention of a jury, and a judgment was rendered in favor of the plaintiff. The defendant appeals, and the only assignment of error is the rendition of the judgment.

The bill of exceptions does not purport to contain all, or substantially all, of the evidence introduced on the trial. In Shafer & Co. v. Hausman, 139 Ala. 240, 35 South. 691, we said: “When on appeal the bill of exceptions fail-to recite that it contains all of the evidence, this court will presume any state of the evidence which Avill sustain the giving or refusal of an instruction to the jury by the trial court. — Postal, etc., Co. v. Hulsey, 115 Ala. 193 (22 South. 854) ; Sanders v. Stein, 128 Ala. 633 (29 South. 586); Randall v. Wadsworth, 130 Ala. 633 (31 South. 555). For the same reason this court will sustain the judgment of the trial court on the facts, where the cause is tried without a jury.” In the present instance the bill of exceptions fails to recite that it contains all of the evidence. The case of Southern Mutual Insurance Co. v. Holcomb's Adm’r, 35 Ala. 328, is in point as to the recital in the bill after the statement of the evidence in the case before us. On the authorities cited, the judgment appealed from must be affirmed.

Simpson, Anderson, McClellan, Mayfield, and Sayre, JJ., concur.  