Brassell v. Brassell

87 So. 347 | Ala. | 1921

Lead Opinion

The record in this case fails to disclose a note of testimony as required by chancery rule 75 (Code of 1907, p. 1551). This rule expressly requires that testimony not offered as there provided and noted by the register on the minutes must not be considered as any part of the record. The trial court having granted the complainant relief, and the record disclosing no legally noted testimony in support of same, this decree must be reversed upon the authority of the recent case of Lunday v. Jones, 85 So. 411.1 See, also, Potts v. Commissioner's Court,203 Ala. 300, 82 So. 550, and numerous cases there cited. The agreement of counsel as to taking the testimony, on page 6 of the record, cannot affect or change the result. The agreement does nothing more than to consent to what the trial court was authorized to do under the Act of 1915, p. 705, and said act in no wise abrogates, alters, or modifies rule 75 or excuses a noncompliance therewith. While the opinion of the court in the Lunday Case, supra, makes no reference to the above-cited act, it was considered and is referred to in the dissenting opinion of Justice Gardner. It was, in effect, held in said Lunday Case that rule 75 was in full force and effect and was mandatory, and we now expressly hold that the act of 1915, p. 705, in no wise alters or modifies said rule or excuses a noncompliance therewith.

The decree of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

All Justices concur, except GARDNER, J., who dissents.

1 204 Ala. 326.





Dissenting Opinion

I am not in harmony with the holding of the majority in Lunday v. Jones, 85 So. 411,1 and think the result here more clearly demonstrates the error of that decision, which, in my humble judgment, should be now overruled.

In any event, however, chancery rule 75 is but a rule of practice, a compliance with which may be waived by appropriate agreement of counsel. I construe the agreement of counsel entered into in this cause (especially when viewed in connection with the procedure that follows) as intending to embrace all questions of practice relating to this trial, which would include any formal notation of the evidence. So construing the agreement, therefore, I cannot agree to the majority opinion, and consider it most unfortunate that the cause is not determined here upon its merits.

I therefore respectfully dissent.

1 204 Ala. 326.