Opinion
8 Div. 523.
November 16, 1933.
Raymond Murphy, of Florence, for petitioner.
Where the bill of exceptions shows affirmative error that is not rebutted by the record, the case should be reviewed. The bill of exceptions in this case contains unrebutted testimony showing affirmative error, and in failing to consider same the Court of Appeals erred. Donaldson v. Wilkerson, 170 Ala. 507, 54 So. 234; National L. A. I. Co. v. Spigener, 225 Ala. 655, 144 So. 813.
Bradshaw Barnett and Robert M. Hill, all of Florence, opposed.
There is nothing in the opinion of the Court of Appeals which can be reviewed; no questions were treated in the opinion. Certiorari will not issue to review decisions on questions involving recourse to disputed evidence or facts not disclosed by the opinion. Ballard v. State, 219 Ala. 222, 121 So. 502; Polytinsky v. Wilson, 215 Ala. 455, 111 So. 276.
The opinion of the Court of Appeals applies the doctrine of error without injury to the case as presented by the record, without stating the facts. In such case, ordinarily, as has been uniformly ruled here, the decision of the court cannot be reviewed. Campbell v. State, 216 Ala. 295, 112 So. 902.
But where this doctrine has been applied under a misapprehension of the law, and this appears on the face of the opinion this court will reverse the Court of Appeals and remand the case to that court for further consideration.
It is stated in the opinion that "The bill of exceptions does not purport to set out all the evidence — hence we assume such a condition of same as to justify each ruling — none of same being inherently and incurably erroneous — to which exception was reserved."
As was observed in Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358, 359, 90 Am. St. Rep. 914, "While this court has gone very far in indulging this presumption to sustain the judgment below, where charges are involved, it has never extended it to a case where evidence was improperly admitted or excluded," citing Torrey v. Burney, 113 Ala. 496, 21 So. 348; Postal Telegraph Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854; DeLoach v. Robbins, 102 Ala. 288, 14 So. 777, 48 Am. St. Rep. 46; McDonald v. Wood, 118 Ala. 589, 24 So. 86, section 6438, Code of 1923.
This rule has been reaffirmed. See John Dodd Wholesale Grocery Co. v. Burt, 225 Ala. 438, 143 So. 832; Southern Hardware Supply Co. v. Standard Equipment Co., 165 Ala. 582, 51 So. 789; Berow v. Brown, 208 Ala. 476, 94 So. 772.
The writ of certiorari must therefore be granted, the judgment of the Court of Appeals reversed, and the cause remanded to that court for further consideration.
Writ granted; reversed and remanded.
All the Justices concur.