McGEE v. S. M. FREEMAN & SON

(101 So. 644) McGEE v. S. M. FREEMAN & SON. (6 Div. 213.) (Supreme Court of Alabama. Oct. 23, 1924.) 1. Appeal and error <&wkey;907(4) — Presumption in favor of judgment of court without jury, where bill does not set out all evidence. Where case is tried by court without a jury, and bill of exceptions does not purport to set out all evidence, appellate court will presume any state of evidence to sustain judgment. 2. Continuance &wkey;>3l — Refusal of continuance on ground of surprise within trial court’s discretion. Refusal of defendant’s motion for continuance, after plaintiffs had testified as to consideration of note sued on, on ground that he was taken by surprise, held within trial court’s discretion. Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge. Action on note by S. M. Freeman & Son against S. S. McGee. From judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 5. Affirmed. After testimony .by one of the plaintiffs as to the consideration of the note, defendant stated that he was taken by surprise, was not prepared to meet that issue, and moved the court to grant him a continuance. The court overruled the motion, and defendant excepted. S. H. Sprott, of Tuscaloosa, for appellant. .Counsel argue the rulings on the trial, but in view of the opinion it is not necessary that the brief be here set out. Monette, Taylor & Dozier, of Birmingham, and Reuben H. Wright and Leigh M. Clark, both of Tuscaloosa, for appellees. Where a bill of exceptions fails to show that it contains all the evidence, any state of evidence will, be presumed to uphold the rulings of the trial court. Lewis Land & Lbr. Co. v. Interstate Lbr. Co., 163 Ala. 592, 50 So. 1036; 1 Michie’s Ala. Dig. 507. The granting or refusal of a continuance is within the discretion of the trial court, and not subject to review. Pensacola Co. v. Brooks, 14 Ala. App. 364, 70 So. 968; 1 Michie’s Ala. Dig. 540; Strong v. Cathins, Adm’r, 37 Ala. 707; Wimberly v. Windham, 104 Ala. 412, 16 So. 23, 53 Am. St. Rep. 70; Murph v. State, 153 Ala. 67, 45 So. 208. [MAJORITY — THOMAS, J.] THOMAS, J. The bill of exceptions does not recite that it contains all of the evidence. V Where a case is tried and determined by the court without a jury, and the bill of exceptions does not purport to set out all of the evidence, this court will presume any state of the evidence to sustain the judgment rendered on the facts. 1 Mich. Ala. Dig. p. 506, § 907; 13 Mich. Ala. Dig. p. 151, § 907. The granting or refusal of a continuance, under the circumstances, was within the discretion of the trial court, and such discretion was not abused. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Murph v. State, 153 Ala. 67, 45 So. 208; Wimberly v. Windham, 104 Ala. 409, 16 So. 23, 53 Am. St. Rep. 70; 1 Mich. Ala. Dig. p. 540, § 966. The judgment is affirmed. ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.