Opinion
6 Div. 388.
June 1, 1933.
Certiorari to Court of Appeals.
London, Yancey Brower and Al. G. Rives, all of Birmingham, for petitioner.
If pleas 5 and 6 were good against demurrer, defendant had the right to introduce all evidence which would have been admissible thereunder, having made the suggestion provided by Section 7400 of the Code. Torbert v. McFarland, 172 Ala. 117, 55 So. 311; Davis v. Reid Lbr. Co., 204 Ala. 517, 86 So. 379. There is no bill of exceptions, and from aught appearing defendants were permitted to introduce in evidence the matters set out in pleas 5 and 6. The appellate court will not presume injury, and will not reverse a judgment unless it affirmatively appears that error has been committed and appellant has been injured thereby. Supreme Court Rule 45; Wilson v. Owens H. M. Co., 14 Ala. App. 467, 70 So. 956.
Von L. Thompson, of Birmingham, for respondents.
Brief did not reach the Reporter.
This case was reversed by the Court of Appeals upon the sole ground that the trial court erred in sustaining the demurrer to the defendants' special pleas 5 and 6 of recoupment and set-off. We fully agree with counsel for petitioner that the defense set up in these pleas was provable under the statutory suggestion that the indebtedness due upon the mortgage or conditional sale be ascertained (Torbert v. McFarland, 172 Ala. 117, 55 So. 311), and that the Court of Appeals could have well affirmed the case under the doctrine of error without injury in the absence of a bill of exceptions or some affirmative record evidence showing that the defendant was denied this right under the statutory suggestion. Wilson v. Owens Horse Mule Co., 14 Ala. App. 467, 70 So. 956; Henderson v. T. C., I. Ry. Co., 190 Ala. 126, 67 So. 414; Miller v. Mutual Grocery Co., 214 Ala. 62, 106 So. 396.
This court, however, will not reverse the Court of Appeals upon the doctrine of error without injury when the opinion of the Court of Appeals makes no reference to the question nor furnishes a statement of fact which could supply a basis for a review by this court.
Writ denied.
GARDNER, BOULDIN, and FOSTER, JJ., concur.