Curtis v. Curtis

• Decision Date: 19 November 1912
• Parties: CURTIS v. CURTIS.
• Court: Alabama Supreme Court

60 So. 165

180 Ala. 70

CURTIS v. CURTIS.

Supreme Court of Alabama

November 19, 1912

Appeal from Chancery Court, Wilcox County; Thomas H. Smith Chancellor.

Action by A. B. Curtis against M. E. Curtis. From a judgment confirming an auditor's report, defendant appeals. Modified and affirmed.

Jones &amp Mabry, of Camden, and W. W. Quarles, of Selma, for appellant.

Howard & Jones and N. D. Godbold, all of Camden, for appellee.

SAYRE J.

It is not necessary to state the case made by the original and cross bills. In its preliminary decree, which settled the merits in a general way, the chancery court ordered a reference for the ascertainment of the balance due from appellant to appellee, directing that the appellee be treated as a mortgagee in possession of the mortgaged premises before foreclosure. Appellant affirms that this method of treating the cause was clearly right. Appellee does not complain. Those questions which the appeal seeks to bring under review arose on exceptions to the register's report. So far as the rulings and conclusions objected to involved questions of fact, as all of them did, we might well refuse to review them for the reason that in filing the exceptions there was not the slightest effort to observe rule 93 of chancery practice which requires that at the foot of each exception to conclusions of fact, drawn by the register, the evidence, or parts of evidence, relied on in support of the exception shall be noted, with such designation and marks of reference as to direct the attention of the court to the same. The chancellor, nevertheless, while noting their lack of compliance with the rule, observed that he had considered appellant's exceptions and in his decree held them for naught. The report was in all things confirmed. And now the insistence is that this court ought to review the register's findings.

By the terms of the rule, the chancellor in considering exceptions need not examine testimony not noted, and, of course, he need not consider exceptions to which no testimony is noted. Had the chancellor sustained any of these exceptions, a different question, to be determined upon different considerations, would be presented; but, since the presumption in favor of the register's report has the added weight of the decree of confirmation, the chancellor's investigation might well be treated as a voluntary contribution to the labor of the cause which no rule of law or proper practice requires this court to repeat. The reasons for this conclusion are presented with clearness in Warren v. Lawson, 117 Ala. 339, 23 So. 65, and need not be repeated. They are very well illustrated in this case, where we are asked to examine 225 pages of testimony on numerous exceptions in which no attempt whatever is made to point out those parts of the testimony affecting the several questions raised.

Counsel for appellant file here a brief, which they say was filed with the chancellor, and of course it was, and in which they undertook to point out the testimony as the rule required them to do in their exceptions, and in briefs now filed reasons are shown why the rule was not followed. The fact is that parties were given ample time, and, if the equity of the case required it, could doubtless have had more. However that may be, it is impossible...