I cannot agree to the disposition of this appeal as made by the opinion of the majority. The defendant interposed special pleas 3 and 4, to which no demurrer was sustained, and the case seems to have been tried upon the issue there presented and there was proof in support of said pleas, and, this being the case, the plaintiff was not entitled to the general charge given by the trial court. This is an appellate court only, and must determine appeals upon issues presented, and not de novo, by disregarding the issues and proof and rendering a judgment that could or should have been rendered had the case been tried upon the proper issues and proof and according to legal principles applicable thereto I am opposed to technical and frivolous reversals, but do not think that this court should disregard the proceedings in the trial court to the extent of affirming a case upon the theory that if it had been differently and properly tried the defense here set up would have been unavailing.
McCLELLAN, J., concurs in this dissent.