| Ala. | Dec 15, 1888

CLOPTON, J.

Eule 77 of Chancery Practice prescribes the mode and order in which the testimony shall be offered on the hearing of a cause, as follows: The complainant must “offer his testimony in chief, naming the witnesses and other testimony, of which the register must take a note; and then that of the defendant must be offered, and noted by the register; to which the complainant, in like manner, must offer his rebutting testimony.” The rule then declares; *?“Any testimony not offered in tbis way, and noted by tbe register on tbe minutes, must not be considered as a part of tbe record, nor be considered by tbe chancellor.” And Buie 78 provides: “Tbe register shall enter on the'minutes of tbe court a memorandum of tbe testimony offered by each party on tbe hearing of tbe cause, a copy of which shall be filed with tbe papers for tbe use of tbe chancellor.” — Code, 1886, p. 824. These rules are both mandatory and prohibitory. They command that all testimony offered by tbe parties be noted by tbe register, and entered on tbe minutes, and prohibit the consideration of any testimony not so offered, though it may be among tbe papers of tbe cause.

Tbe present cause was first submitted at tbe October term, 1886, when a note of tbe testimony was made, and entered on tbe minutes, as required by tbe rules. Tbe submission was set aside by tbe chancellor at tbe same term, for tbe reason that tbe cause was not at issue as to a material defendant. Tbe vacation of tbe order of submission reinstated tbe cause, and restored it to tbe same condition in which it was before tbe submission, and operated also to vacate tbe note of testimony, which was incidental, and an essential part of tbe submission. At tbe October term, 1887, tbe cause having been put at issue, was again submitted. On tbis bearing, so far as appears from tbe record, no testimony was offered by either party; none was noted by tbe register, and no memorandum of any was entered on tbe minutes. Tbe absence of such memorandum from tbe record can not be supplied by an intendment, from tbe recital of tbe decree that tbe “cause was submitted on pleadings and testimony,” that it was submitted on tbe testimony' noted on tbe vacated submission. Such recital is referable to the testimony appearing among tbe papers in tbe cause and not noted, as well as that noted. Conformity to tbe rules requires, that when a cause has been submitted, and tbe order of submission vacated, on a re-submission at a subsequent term, tbe testimony should be noted, and- a memorandum thereof entered on tbe minutes, as if there bad been no former submission and note of testimony; unless tbe parties, by agreement, substitute tbe former note, which agreement should appear on tbe record. Tbe necessity of so construing tbe rules is made apparent by tbe record in tbis case, in which there appear six different depositions, only two of which were noted when tbe cause was first submitted, tbe other four having been taken and published since tbe submission was set aside.

*476The cause having been submitted without any testimony being noted, the hearing was, of necessity, on bill and answers, the verification of which was waived. Some of the most material allegations of the bill, the admission or proof of which is essential to entitle complainants to relief, are expressly denied, and others not admitted. When the hearing is on bill and unsworn answer, the complainant is not entitled to relief, unless so entitled on the admitted allegations of the bill. — Winter v. City Council, 83 Ala. 589" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/winter-v-city-council-of-montgomery-6513013?utm_source=webapp" opinion_id="6513013">83 Ala. 589.

As the memorandum of the testimony noted by the register constitutes an essential part of the record, and as the entry of the memorandum on the minutes is requisite for this purpose, and as the chancellor is prohibited to consider any testimony not noted by the register, neither can the appellate court consider any testimony not so noted, though it may appear in the transcript transmitted to this court. It would, therefore, be improper for us to pass upon the effect of the evidence, which is copied in the transcript. As the complainants are not entitled to relief on the bill and answers alone, the decree must be reversed, and the cause remanded, that the parties may offer their testimony, and have it noted in conformity with the rules.

Reversed and remanded.