Woodruff v. Smith, 127 Ala. 65

Woodruff v. Smith

127 Ala. 65 | Ala. | 1899

DOWDELL, J.

The appeal in this case is taken by S. E. Woodruff on behalf of herself and- her co-defendants from the decree of March 22, 1897. A severance was had and errors separately assigned by S. E. Wood-ruff and L. W. Turpin; no assignments of errors by other defendants. Assignments by L. W. Turpin not being insisted on by him, we will only consider those assignments made -by S. E. Woodruff.

The first assignment of error relates to the decree of November 30, 1896. No-appeal was taken from this decree, and the motion to strike this assignment raises the question as to whether this decree is interlocutory or final. The complainant’s bill was filed for"the purpose of having determined and fixed his' rights in the land involved under the ante-nuptial contract between complainant’s father and mother, a copy of which is attached as exhibit A to the bill. On a ■ former appeal in this case, this contract received a construction by this court. — Smith v. Turpin, et al. 109 Ala. 689. Following the construction placed upon-this contract-by this court, the decree in question rendered on November 30, 1896, was upon a submission, of the several *75causes-named; by consent of parties, for final decree on the pleadings and testimony. This decree has all the elements of a final decree, and from an examination of the pleadings it would seem that every question affecting the rights and equities of the parties was fully determined, leaving nothing to be done, except to put the complainant in possession and enjoyment -of the rights decreed to him by appropriate orders of the court. In Cochran v. Miller et al. 74 Ala. 62, 63, it was said by this -court: “The test of the finality -of a decree, which our decisions have prescribed, is not whether the cause is still in progress in the court of chancery, awaiting further proceedings, which may be necessary to entitle the parties to the full possession and enjoyment of the rights it has been declared they have; but, whether a decree has been rendered -settling those rights;” citing Jones v. Wilson, 54 Ala. 50; Broughton v. Wimberly, 65 Ala. 549; McLemore v. Nuckolls, 37 Ala. 662. And it is also further said in that, -case: “Under our chancery system, there may be two final decrees in one and the same cause, and there may be, and frequently are, two appeals therefrom.” In its terms -and provisions, there-is- a striking similarity between the decree in Cochran v. Miller, which was held to be a final decree, and the decree of November 30, 1896, in the present case. As to the elements which go to constitute a final decree, the two are substantially the same. The decree of November 30, 1896, being a final decree, and no -appeal having -been taken -from it, the motion to strike the assignment relating thereto must prevail.

Assignments numbered from 2 to 8, both inclusive,-relate to the action of the chancellor in overruling the exceptions of S.. E. Woodruff, numbered from-7 to 13, both inclusive, to the register’s report; • Rule 94, Chancery Practice, Code, 1896, provides as follows: “In filing exceptions to the report of the register, or any part thereof, it shall be the duty of the solicitor filing the same to note at thp foot of each exception to conclusion of facts, drawn by the register, the evidence, -or parts of evidence he relies on in -support of the exceptions, with such designation and marks of reference as to -direct the attention of the court to the same; and if the opposing *76solicitor desires to do so, lie can note in writing such other parts of the evidence as he may deem material to the inquiry. In considering such exceptions, the chancellor need, not examine testimony not thus noted.” The manifest purpose of this rule is to relieve the chancellor of the tedious investigations and search through the testimony of witnesses in the cause for evidence, which, if it exists, must be familiar to the solicitor and of easy reference. A general reference to the testimony of a witness or witnesses in support of an exception to the register’s conclusion, on the facts, is not a substantial compliance with the rule, and the chancellor may for that reason decline to consider such exception. Nor is it rendered any the less objectionable in noting-testimony in -support of the exception to refer to the testimony in -a general way and alone -by reference to pages. Such noting is but little if -any better than a general reference to the testimony of a named witness or witnesses, and fails to afford that aid and facility to the court intended to be accomplished by the rule. The exceptions in this case are characterized with the infirmities we have mentioned. In Mahone v. Williams, 39 Ala. 225, this court, quoting from Chief Justice Marshall, said: “It i-s not the province of -a court to investigate items of an account. The report of a master is received as true, when no exception is taken; and the exceptions are to be regarded only so far as they are supported by special statements of the master, or by evidence which ought to be brought before the court by reference to the particular testimony on which the exceptor relies. . Were it otherwise — were the court to look into the immense amount of testimony laid before the commissioner — the reference to him would be of little avail. Such testimony, indeed,-, need not be reported, farther-than it is relied -on to support, explain, or- oppose a particular exception.” See also Stewart v. Cross, 66 Ala. 22; Vaughan v. Smith, 69 Ala. 92; Jones v. White, 112 Ala. 449; Thompson v. Maddux, 117 Ala. 468.

The present case illustrates the reasonableness of rule,94, and the necessity for a compliance with said *77rule. Tlie second assignment of error is, that “the court erred in overruling exception 7, page 134 trans-script, taken by appellant Woodruff to register’s report, by decree of March 22, 1897, page. 139 transcript.” On page 134 of the transcript, exception 7 taken to the register’s report is as follows: “For that the register has reported that a reasonable allowance for the support of the complainant for the year 1893 was $240, for 1894 $240, for 1895 $240, and from January 1st to October 1st, 1896, $200, whereas' all the evidence without question shows that these finding's of the register is for the reasonable support, etc. of the complainant “in the city of Montgomery, page 15 of the testimony.” The transcript before us containing the master’s report and the testimony taken before the master, does not preserve the paging of the report and testimony as presented in the court below. Looking from the. second assignment of error in this transcript to .exception 7, it is utterly impossible for this court to know what particular part of the evidence is relied on in support of the exception; and the court Avould therefore be required to read the entire testimony in the case to find out if there be any evidence to support such exception, the A7erv thing that rule 94 Avas intended to obviate.

The decree appealed from of March 22, 1897, directs that tbe Turpin land shall first be exhausted for the satisfaction of said decree before going upon the lands of the appellant Woodruff. Certainly there is nothing in this part of the decree injurious to the appellant Woodruff and of which she could complain. Nor is there any error of which appellant Woodruff can complain in that there Avere no personal judgments rendered in said decree of March 22. The decree of November 30, following the construction put by this court upon the aiite-nuptial contract determining the rights of complainant in the lands in question, fixed upon the same a liability, and the decree appealed from is only a. step in the direction, by appropriate orders, of an enforcement of the rights and liabilities fixed by the former decree.

*78There is no error in the rendition of the decree appealed from,, and the same must therefore be affirmed.

Decree affirmed;