112 So. 207 | Ala. | 1927
The case is reported on first appeal as
The earlier decisions were to the effect that a report, though erroneous on its face, "may be inquired into without any exception taken to the register's report." Levert v. Redwood, 9 Port. 79, 94; Lang v. Brown,
The rule as to exceptions to reports of registers was given expression in the Code of 1876, p. 174, rule 93; vol. 4, Code of 1923, p. 935, rule 93. In Clark v. Knox,
"This rule (89) [Code 1876; section 88, Code 1923] provides for an exception before the register. It is when there are 'exceptions to his rulings on testimony, admitted or rejected by him.' These he must note, and if the exception is not then taken, it is waived. Rule 93 prescribes how exceptions are to be taken in the chancery court, and in what manner testimony, to sustain or defeat the exception, is to be brought before the court. All this is done before the court, and not before the register. * * *
"When, however, the register's report, or the testimony, one or both, show that he has disobeyed the mandate of the decretal order, or chancellor's instructions, or that he has otherwise committed some positive error of law or of fact, it is not necessary that any motion or exception should be made or taken before him, or that he shall be notified an exception will be taken. A day is allowed, after the report is read in court, for filing exceptions to it; and it is not necessary that any one shall have earlier notice of the intention to except to it. Rule 94 of Chancery Practice. See Harbin v. Bell,
A general statement of the rule of the later cases is that a register's report is conclusive on appeal, where no exceptions are taken to the report or to any part thereof within the time prescribed. Rule 93, vol. 4, Code of 1923, p. 935; Morrison v. Chambers,
The failure to file exceptions was tantamount to an admission of the correctness of the report, and no objection to its correctness can be raised for the first time in this court. Nat. Com. Bank v. McDonnell,
In Lehman v. Levy,
It is established that, when a case is submitted for final decree, testimony not presented by the required note of testimony will not be considered by the trial judge, nor will it be considered by this court. Rule 75, vol. 4, Code 1923, p. 930; Crews v. Patterson,
Conceding that the facts canvassed by the register may be re-examined, as to the redemption of shares of stock in LaDura Consolidated Mine Co., and as to the Middlebrooks notes, the record shows the only testimony noted by the register was that offered by appellee, defendant. The rule (chancery court, No. 75) precluded the consideration of complainant's testimony by the circuit judge sitting in equity court. For this additional reason a re-examining of the facts in the light of complainant's evidence, not noted by the register on submission, will not be made. Kelley v. Chandler,
The time for appeal from the challenged decree has long since expired, and only questions duly presented as to finding of the register may be considered. Burgin v. Sugg,
The decree of the circuit court in equity is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur. *581