WISE et al. vs. RINGER

WISE et al. vs. RINGER. [motion to quash execution.] 1. Judgment of live eov.it below; Will not be reviewed, When. — Unless tire record shows affirmatively all the facts upon which the court below acted, its action will not be reviewed, if there be any supposable state of facts by which that action could be sustained. Appeal from tbe Circuit Court of Cherokee. The record in this case contains a motion made by the appellants to quash an execution, issued against them in favor of the appellee as the obligors on a replevin bond, which had been executed by them for the delivery of a certain slave which had been attached as the property of Jacob Wise, in an attachment sued out against him by Binger. Judgment had been rendered in the attachment suit against Wise, and the bond had been returned as “ forfeited.” The record does not set out any statement of facts which were proved to sustain the motion, nor any bill of exceptions, or other matter, to show that the decision of the court below was excepted to. There is a judgment of the court overruling the motion, and from this the said Wise et al appealed, and assign for error the refusal of the court below to grant their motion. Thomas B. Cooper, for appellants. [MAJORITY — BYRD, J.] BYRD, J. On the authority of Lunsford et al. v. Richardson & O'Neal, 6 Ala. 618, we hold that an appeal lies from the judgment of an inferior court overruling a motion to quash a forthcoming bond, where an execution has been issued upon it; and that, therefore, an appeal lies from a judgment overruling a motion to quash the execution. Secus, as to a motion to quash a bond on which no execution has issued, viz: Gayle & Riggs v. Bancroft, Adm'r, 22 Ala. 648. But there is no bill of exceptions in this case, nor does the record show that any exception was taken to the ruling of the court below. In this state of the record we are left to the presumption that the appellant did not sustain by proof the allegations of his petition, or that the court had sufficient evidence before it to authorize its refusal to quash the execution. Where the court gives judgment upon the facts and law of the case, its action will not be reviewed, unless the record affirmatively shows all the facts upon which it acted, where any supposable state of facts would sustain the action of the court. — McLemore v. Nuckols, 37 Ala. 662; Ward v. Cameron’s Administrators, ib. 691.