Opinion
6 Div. 446.
May 28, 1925.
Appeal from Circuit Court, Pickens County; John McKinley, Judge.
M. B. Curry, of Carrollton, for appellant.
In view of the decision, it is not necessary that brief of counsel be here set out.
Steiner, Crum Weil, of Montgomery, and Patton Patton, of Carrollton, for appellee.
No bill of exceptions appears in the record, and the action of the trial court will not be considered. White v. Roe, 151 Ala. 288, 44 So. 211; Clark v. McCrary, 80 Ala. 110; Williams v. Woodward Iron Co., 106 Ala. 254, 17 So. 517; Sou. Exp. Co. v. Black, 54 Ala. 177; Sou. Exp. Co. v. State, 10 Ala. App. 655, 65 So. 844; Code 1923, §§ 9498, 9502.
The pleadings in this suit on a policy of fire insurance were in short by consent, with leave to give in evidence matters which might be specially pleaded. The trial was upon an agreed statement of facts, by the court, without a jury, and judgment was for defendant.
The question of waiver of default in payment of premium note (Insurance Co. v. Williams, 200 Ala. 681, 77 So. 159), or election (Galliher v. State Mutual Life Ins. Co., 150 Ala. 549, 43 So. 833, 124 Am. St. Rep. 83; Rose v. Citizens' Ins. Co., 210 Ala. 72, 97 So. 81), cannot be presented by incorporating in the record proper the agreed statement of facts. The ruling of the trial court and the rendition of judgment in favor of defendant can only be presented under the facts to this court by bill of exceptions. Code 1923, §§ 9498, 9502; White v. Roe, 151 Ala. 287, 44 So. 211; Western U. T. Co. v. Garthright, 151 Ala. 413, 44 So. 212; Williams v. Woodward Iron Co., 106 Ala. 254, 17 So. 517; Stephenson v. Allison, 165 Ala. 238, 51 So. 622, 138 Am. St. Rep. 26; Clark v. McCrary, 80 Ala. 110; Southern Express Co. v. Black, 54 Ala. 177. An agreement of counsel cannot operate as a bill of exceptions.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.