The Montgomery advertiser., 1902-07-18
RANDALL EFT AL. V. WADSWORTH'
 GUARDIAN.

RANDALL EFT AL. V. WADSWOhIh'
 GUARDIAN.
 Petition in Probate Court for Supesedeas
 -Appeai from the Probate Court of
 Bibb.
 1. Pleading and practice; suficiency or judgment on demurrer.-The recital in a iudRment entry that "the demurrer was oyerruled," does not constitute judg- ment of the court upon said demurrer, and is insufficient to support an assign ment of error based upon the overruhng of such demurrer.
 2 Notions to strike; how presented Rulings on motion to strike certain pleadings from the file, can be presented for review on appeal only by bill of ex- captions.
 B. Pleading and practice; when rulings upon pleadings without prejudice.-Where replications are stricken from the file, but the petitioner or plaintiff is allowed to amend his petition, or complaint, in re- gard to the matter set up in the repl- cations. so as to give him the benefit of any averments contained therein, and said amendment Is subsequently, volun- tarily withdrawn by the party making It, the sustaining of the motion to strike, If erroneous, is not prejudicial and is error without injury.
 q. EVluenCes duiuiSblUihty Oh SCSohoNhy ' evidence.-where, in a proceeding in the probate court, certain papers constitut- ing a part of the file of a case are lost. and the trial judge who was the proper custodian of such papers caused a search to be made by one familiar with the of fee and 1t was shown that after search there was failure to find the missing papers, a sufficient predicate for the in troduction of secondary evidence of the contracts of such papers is laid. S. Pleading and practice; when motior to strike an amendment will not be re- viewed.-In the absence of an exception to the allowance of an amendment to pieading or to the striking of the samt on motion. the ruling of the trial cour, upon such motion can not be reviewed unless properly presented by bill of ex- captions.
 6 Guardian and ward; effect of final settlement.-The final settlement made by a guardian in the probate court, snow ing the amount of his indebtedness to his word, Is conclusive alike on the guardian and his sureties. unless they can impeach it for fraud.
 2. Same; proceedings on final settle ment.-The omission of a guardian IT bringing forward at the final settlement credits to which he is entitled, ever though he is insolvent and knowingly makes the omission, is not such fraut as justifies relief by supersedeas; tn' | ward or succeeding guardian not partici pating in the procuring of sucn omisslon 6. Appeal effect of bill of excepuon' | in setting forth the 'evidence.-Where tn' l bill of exceptions in case does not pur | hort to set out all the evidence, the Judg ment rendered by the trial court Will no l be reversed for the insufficiency or th' | evidence to support such judgment. g. Same; when judgment reversed ftl insufficiency of evidence.-In reviewing l Judgment rendered on a disputed question | of fact dependent upon oral testimony | the Supreme Court will not reverse stcf ! Judgment. unless it is so manifestlA l against the evidence that the trial 1udg' would set aside verdict rendered on th' same testimony and grant new trial' 10. Guardian and ward; jurisdiction O | nrobate court-Where the probate cour | has granted letters of guardianship, th' l subsequent removal of both guardian ahs | ward outside of the County where letter' | of guardianship were issued does not ter ! minate the jurisdiction of such court ou | the court still has power to grant letter' | of guardianship to the successor or th' original guardian. l 11' Supersedeas; money judgment volt l and will not support an appeal-A money | judgment rendered by the probate cour l on a supersedeas bond is void ana VII not support an appeal; and, therefore, ar anneaI from such a judgment will be dls- missed.
 Appeal dismissed.
 Opinion by Tyson, J.