Brandenberg v. Sovereign Camp, W. O. W

Full title: BRANDENBERG v. SOVEREIGN CAMP, W. O. W

Court: Supreme Court of Alabama

Date published: Dec 6, 1923

98 So. 126 (Ala. 1923)

98 So. 126

Opinion

6 Div. 750.

October 18, 1923. Rehearing Denied December 6, 1923.

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

William Vaughn and Louis Silberman, both of Birmingham, for appellant.

The burden of proving noneligibility asserted by the pleas was on defendant. Ala. Gold Ins. Co. v. Mobile, etc., 81 Ala. 329, 1 So. 562; Sov. Camp v. Hackworth, 200 Ala. 87, 75 So. 463; 29 Cyc. 232.

C. H. Roquemore, of Montgomery, for appellee.

The beneficiary must be within the degree of relationship prescribed by the law of the order. Barnett v. United Bros., 10 Ala. App. 382, 64 So. 518; Hardy on Frat. Ins. § 30, 346, 622; 1 Bacon on Benefit Soc. (4th Ed.) §§ 236, 310; 29 Cyc. 105.

SOMERVILLE, J.

When a motion for new trial is granted, and that action is referable to the court's conclusion that the verdict was contrary to the evidence, the judgment granting a new trial will not be reviewed on appeal unless the bill of exceptions presents all the evidence that was before the trial court, as to which the bill must contain an affirmative recital.

Here the bill of exceptions affirmatively shows that there was before the court "record evidence introduced by the defendant," the nature of which does not appear. As to what that evidence was, what it tended to show, and what its probative influence was, we are not allowed to conjecture. Certainly we cannot say that the conclusion of the court upon the whole evidence was erroneous.

The effect of the omission of this evidence from the bill of exceptions cannot be avoided by the recital of the bill that it was removed from the files by defendant's attorney and was not returned in time for incorporation in the bill. So far as appears, it may have been removed with the knowledge and consent both of plaintiff and the court; and, in any case, plaintiff had his remedy to compel its restoration, or else could have stated in the bill the substance of the missing documents.

As the record stands, we can do nothing but affirm the judgment of the trial court.

Affirmed.

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