
    Hurst, et al. v. Rudder-Adams Mill Co.
    
      Assumpsit.
    
    (Decided Dec. 16, 1909.
    51 South. 519.)
    
      Appeal and Error; Review; Presumption. — Section 4770, Code 1907, contemplates a trial of the issues in this ease by the court or by a jury and where the record does not negative a waiver of the submission to the jury, this court on appeal, will presume, if necessary to support the finding, that the right of trial by jury was waived.
    Appeal from Choctaw Circuit Court.
    Heard before Hon. John T. Lackland.
    Action by the Rudder-Adams Mill Company against J. W. Hurst to enforce a material-man’s lien. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Roach & Chamberlain, for appellant.
    The court erred in rendering the judgment for the reason that there was no jury and verdict and no ascertainment of the fact of indebtedness. — Tisdale v. A. & G. L. Co., 131 Ala. 161; F. B. & I. Assn. v. Schall, 107 Ala. 534; Sections 4764-4770, Code 1907.
    G. H. Carnaphan, for appellee. No brief reached the Reporter.
   McCLELLAN J.

Action by appellee against appellants to enforce lien for materials furnished in construction of a building. The appeal is on the record alone. The judgment is valid on its face. It shows that the parties were before the court at the time the judgment was rendered. The argument of counsel for appellant seems to be that error infected the proceeding because of the asserted failure to take a jury’s verdict on the question, whether there was a debt due the plaintiff for materials furnished, and, if so, how much, and whether the plaintiff had a lien therefor.

Section 4770 of the Code contemplates a trial of these issues by the court without a jury, or by a jury. The record (there is no bill) does not negative a tvaiver of a submission of the issues to the jury. To sustain the' judgment we will presume, if necessary, that the right to a jury trial was waived. The judgment is affirmed on the errors assigned and argued here.

Affirmed.

Anderson, Sayre, and Evans, JJ., concur.  