Hogg v. Jenifer Iron Co.

Citation215 Ala. 683,112 So. 207
Decision Date24 March 1927
Docket Number6 Div. 696
PartiesHOGG v. JENIFER IRON CO.
CourtSupreme Court of Alabama

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Bill for injunction by the Jenifer Iron Company against Link Hogg. From a decree for complainant, defendant appeals. Affirmed.

Pinkney Scott, of Bessemer, for appellant.

Mathews & Mathews, of Bessemer, for appellee.

BROWN, J.

This appeal is from the final decree rendered on a submission of the cause on the pleading and proof, and is here submitted without suggestion of a diminution of the record, or motion for certiorari to perfect it, under rule 19 of Supreme Court Practice (Code 1923, vol. 4, p. 885).

It is conceded by the appellant that the record is incomplete in that a part of the testimony--that given orally in the presence of the trial court and taken in shorthand by the court reporter--embraced in the submission, is omitted from the record. We find appended to the record a petition praying for mandamus or other appropriate writ, to be directed to the trial court or its officers, to compel transcription of the oral testimony and certification of the same, as a part of the record, but there is no submission on this petition, nor was it called to the court's attention at the time of the submission.

The rule of practice, 19, supra, provides the parties, on the suggestion of a diminution of the record and motion for certiorari, a remedy to perfect the record, and it was the duty of the appellant, before submitting his case, to pursue this remedy; but, having submitted the case without doing so, the court has no other alternative than to dispose of the case on the record as it now stands.

The record shows no rulings on the demurrers to the bill, nor on the motions made the basis of the assignments of error, and, it appearing that the record does not contain all of the testimony upon which the case was submitted to the trial court, we cannot review the finding on the facts.

Affirmed.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

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10 cases
  • Ruck v. Ruck
    • United States
    • Alabama Supreme Court
    • June 14, 1956
    ...688, 690, 8 So.2d 187; McGriff v. McGriff, 242 Ala. 69, 4 So.2d 507; Allen v. Allen, 223 Ala. 223, 225, 135 So. 169; Hogg v. Jenifer Iron Co., 215 Ala. 683, 112 So. 207; Wood v. Wood, 119 Ala. 183, 185, 24 So. 841. From Moore v. Pettus, supra [260 Ala. 616, 71 So.2d 821], is the '* * * Unde......
  • Eaton v. Shene, 6 Div. 472
    • United States
    • Alabama Supreme Court
    • June 27, 1968
    ...Linn, 242 Ala. 688, 8 So.2d 187; McGriff v. McGriff, 242 Ala. 69, 4 So.2d 507; Allen v. Allen, 223 Ala. 223, 135 So. 169; Hogg v. Jenifer Iron Co., 215 Ala. 683, 112 so. 207; Wood v. Wood, 119 Ala. 183, 24 So. 841; and from Moore v. Pettus, 'Under our well established rule we cannot disturb......
  • Welch v. State
    • United States
    • Alabama Supreme Court
    • September 8, 1960
    ...without doing so, the court has no other alternative than to dispose of the case on the record as it now stands.' Hogg v. Jenifer Iron Company, 215 Ala. 683, 112 So. 207; McGriff v. McGriff, 242 Ala. 69, 4 So.2d '* * * if the appellant submits on the record without suggesting a diminution, ......
  • Local No. 157 of Intern. Union of Mine, Mill and Smelter Workers v. Local No. 4202 United Steel Workers of America, Affiliated with C. I. O.
    • United States
    • Alabama Supreme Court
    • June 27, 1957
    ...688, 690, 8 So.2d 187; McGriff v. McGriff, 242 Ala. 69, 4 So.2d 507; Allen v. Allen, 223 Ala. 223, 225, 135 So. 169; Hogg v. Jenifer Iron Co., 215 Ala. 683, 112 So. 207; Wood v. Wood, 119 Ala. 183, 185, 24 So. Under the circumstances the trial court's findings from the evidence are not open......
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