135 So. 169 | Ala. | 1931
In Johnson v. Riddle Ellis et al.,
And in Turner v. Turner,
Therefore, testimony given ore tenus in an equity case as provided by the statute, and taken down in shorthand, when noted by the register as required by Chancery Rule 75, becomes a part of the record, and the parties, on proper motion, are entitled to have an order of the court requiring the stenographer to transcribe the same and file it in the case, the cost thereof to be taxed as in the case of other depositions. The court has power to make such order and perfect the record after an appeal has been taken. Seymour Sons v. Thomas Harrow Co.,
Where there is a diminution of the record, rule 19 of Supreme Court practice provides the remedy; and if the trial court ex mero motu makes an appropriate order and refuses on motion of the parties to require a transcription of the testimony, petition for mandamus would lie.
However, if the appellant submits on the record without suggesting a diminution, he waives his right to certiorari to perfect the record, and this court will proceed to dispose of the case on the record as it is. Hogg v. Jenifer Iron Co.,
It appears on the face of the record that much of the testimony was given orally and in open court, and has not been transcribed and incorporated in the record. Therefore, the conclusion of the circuit court as expressed in the decree dissolving the bonds of matrimony between the complainant and the defendant, and dismissing the cross-bill, cannot be reviewed on this record.
We are of opinion, however, that it will be to the best interest of the parties concerned, and for the public good, that both parties be permitted to contract marriage if they so desire, and in this respect the decree granting a divorce to the complainant, allowing solicitor's fees, and dismissing the cross-bill is corrected, and as corrected is affirmed. Robertson v. Robertson,
We are of opinion, furthermore, that the circuit court erred in denying to the defendant alimony, both temporary and permanent. Under the statute she is entitled to alimony pendente lite, as a matter of right. Code 1923, § 7417; Coleman v. Coleman,
And, if the wife has no separate estate, or if she has such estate and it is insufficient for her maintenance, she is entitled to some allowance as permanent alimony. Code 1923, § 7418; Gibson v. Gibson,
The question, as to whether or not there has been a settlement of their property rights, was referred to the register and the finding of the register is adverse to the contention of appellee that there was such settlement.
The register found and reported that $25 per month was a reasonable allowance to the defendant as temporary alimony. The suit was pending about six months, and the aggregate allowance as temporary alimony at $25 per month would be $150. The husband is shown to have an estate worth $2,000 and is receiving a regular salary of $150 per month. At the time of the separation, the defendant, with the consent of the complainant, took from the home about $500 worth of *226 personal property, and the judgment here is that she should be allowed this property, and in addition thereto, the sum of $250, making a total allowance of $750 as permanent alimony.
The decree of the circuit court, in so far as it denied to the defendant alimony temporary and permanent, is reversed, and a decree is here rendered allowing the appellant $150 as temporary alimony, the property which she has heretofore removed, and the further sum of $250 as permanent alimony. The appellee is taxed with the cost of the appeal and the costs of the suit.
Corrected and affirmed in part, and in part reversed and rendered.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.