Opinion
No. 35193
Decided April 23, 1958.
Appeal — No bill of exceptions — Judgment not disturbed by reviewing court, when — Specific performance — Contract for sale of land.
APPEAL from the Court of Appeals for Pike County.
The plaintiffs brought this action for specific performance of a contract to sell land. The plaintiffs paid to defendant W. A. Sweeney all the purchase money, except the last payment which they tendered into court at the time this suit was instituted. Plaintiffs made a prima facie case against defendants and rested. Defendants refused to deliver a deed unless certain rights to timber growing on the land were reserved. Defendants tendered into court a warranty deed, in which defendant Mrs. Sweeney released her dower rights and in which were reserved certain timber rights claimed under a contract of sale, and moved for dismissal of the petition.
The Court of Common Pleas, at the close of plaintiffs' case in chief, sustained the defendants' motion to dismiss the petition and, by stipulation, dismissed defendants' cross-petition without submission on its merits.
An appeal on questions of law and fact was perfected to the Court of Appeals. The cause was submitted on a transcript of the testimony, exhibits, briefs and arguments of counsel. The court found that the appeal was properly perfected, that the parties were properly before the court, and that plaintiffs fully complied with the terms and conditions of the contract on their part to be performed, and ordered that defendants make, execute and deliver to plaintiffs a good and sufficient deed for the premises with covenants of general warranty and appropriate release of dower. The court denied an application for rehearing and overruled a motion for a new trial.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Wray Bevens, for appellees.
Mr. W.T. Reed, for appellants.
There being no bill of exceptions filed or allowed by the Court of Appeals in which the case was heard de novo, this court cannot say that there was no substantial evidence warranting the Court of Appeals in reaching the conclusion it did. On appeal on questions of law all reasonable presumptions consistent with the record will be indulged in favor of the validity of the judgment under review and of the regularity and legality of the proceedings below.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS and HERBERT, JJ., concur.