Brassell v. Brassell

• Decision Date: 13 January 1921
• Docket Number: 3 Div. 486
• Citation: 205 Ala. 201,87 So. 347
• Parties: BRASSELL v. BRASSELL
• Court: Alabama Supreme Court

87 So. 347

205 Ala. 201

BRASSELL v. BRASSELL

3 Div. 486

Supreme Court of Alabama

January 13, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Walter R. Brassell against Jane Porter Brassell for divorce and the custody of the child.Decree for complainant, and respondent appeals.Reversed and remanded.

Gardner J., dissenting.

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It is mutually agreed by and between the solicitors in the above-stated case, Hill, Hill, Whiting & Thomas and W.A Jordan, for complainant, and Holloway & Hill, for respondent as follows:

(1) That the demurrers heretofore interposed to said bill are hereby withdrawn.

(2) That respondent shall file a cross-bill on or before August 24th, and same shall be answered by complainant's solicitors on or before August 26th.

(3) That both parties hereto agree that no interrogatories shall be filed, that all notice of time is hereby waived by both parties, and the testimony of both parties shall be taken in open court before Judge Leon McCord, and he shall be requested to enter an order requiring said testimony to be taken orally in open court, as provided by Acts of Legislature 1915, p. 705.

Holloway & Hill and Ball & Beckwith, all of Montgomery, for appellant.

Hill Hill, Whiting & Thomas and W.A. Jordan, all of Montgomery, for appellee.

PER CURIAM.

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.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...