Opinion
6 Div. 307.
April 11, 1929.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Thomas Dozier and Drennen Burns, all of Birmingham, for appellant.
Counsel discuss the errors assigned, but without citation of authorities.
William S. Pritchard and John D. Higgins, both of Birmingham, for appellee.
Where there is no evidence in the record, the appellate court will presume any state of evidence to have been before the court to sustain its judgment, as the judgment is presumed free from error until the contrary is shown. Carnley v. Moore, 214 Ala. 114, 106 So. 604.
Appellant sued appellee in an action of tort. On September 27, 1927, plaintiff obtained a judgment by default. The record discloses next an amendment to the complaint filed December 15, 1927, a demurrer thereto, followed by defendant's plea of the general issue "in short by consent." Then follows the judgment entry on the same day (December 15, 1927), showing a trial of the cause upon the merits by the court, a jury having been waived, and a finding and judgment in favor of the defendant. From this latter judgment, plaintiff prosecutes the appeal.
There is no bill of exceptions, and the appeal is upon the record, the substance of which is outlined above. As to what occurred between the date of the judgment by default and the judgment upon the merits is not made to appear from the record here presented. We learn, however, from the case of Roniotos v. Peerless Laundry Corporation (Ala. Sup.) 121 So. 530, present term, as well as from brief of counsel for appellant, that in fact the default judgment was set aside on petition for rehearing filed within four months. Some action of this character would very naturally be presumed from a reading of the transcript. The silence of the record, therefore, in this respect, presents no reversible error.
Ante, p. 157.
"The judgment of the trial court on appeal is presumed to be free from error until the contrary is shown." Carnley v. Moore, 214 Ala. 114, 106 So. 604. The judgment is presumptively correct.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.