Bridgeport Lumber Co. v. Ladd.
Action of assumpsit.
1. Trial of facts by the. court, without a jury, not reuisable where record fails to set, out conclusion of court and exceptions thereto —Where a cause is tried by the court without a jury, the conclusion of the court on the evidence cannot be reviewed on appeal, where the record' fails to show what such conclusion was, and there is no reservation of any exception thereto, or to the judgment of the court.
2. Review of conclusion of trial court on the evidence on a triad, with
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out jury. — Where a case is tried by the court without a jury, and on appeal the record shows the, testimony was directly conflicting, and nearly evenly balanced, the judgment will not be reversed, although the finding should have been different as upon a-preponderance of the testimony, since the appellate court cannot know but that the other evidence in the'case, the appearance and manner of the witnesses upon the stand, which is not and cannot be before the, appellate court, was of a character to create a satisfactory preponderance in favor of the appellee.
Appear from the city court of Bridgeport.
Tried before the Hon. Wuhham L. Stephens.
This was an action of assumpsit brought by the appellee,V. I). Ladd, against the appellant,the Bridgeport Lumber Company, upon a promissory note and an account. The cause was tried by the court, without the intervention of a jury, and judgment was rendered in favor of the plaintiff. Defendant appeals and assigns as error several of the rulings of the trial court.
Any further statement of the facts is rendered unnecessary by the recitals thereof in the opinion of the court.
J. E. Brown for the appellant.
McCLELLAN, J.
Tliis cause was tried by the city court without jury. The present appeal is intended to presont for review the conclusion and finding of the judge of the city court on the evidence. The rocord before us contains the pleadings and judgment, and a statement of the evidence, which statement is called a bill of exceptions. But this so-called bill of exceptions does not show what the conclusion and finding of the court was, and in it, nor in the judgment nor elsewhere in the transcript, there is no reservation of any exception whatever to the conclusion or judgment of the court. On this state of the record we are without authority to revise said conclusion and judgment.— Williams v. Woodward Iron. Co., 17 So. Rep. 517.
If this were otherwise, wo are not prepared to say the trial court erred in the judgment rendered. The testimony was taken orally before the judge. It is directly conflicting, and as presented here is pretty evenly bal'aneod. If it were conceded that on the evidence as *246written down in this transcript, the court should have found for the defendant as upon a preponderance of testimony, we cannot know but that the other evidence in the case, the appearance and manner of the witnesses upon the stand, which has not been and cannot be brought before us, was of a character to create a satisfying preponderance in favor of the plaintiff. — John Woodrow v. Robert Hawving, 16 So. Rep. 720.
Affirmed.
Brickell, C. J., not sitting.