Home Ins. Co. v. Shriner, 1 Div. 923a

• Decision Date: 02 December 1937
• Docket Number: 1 Div. 923a,925a
• Citation: 235 Ala. 65,177 So. 897
• Parties: HOME INS. CO. v. SHRINER et al. AETNA INS. CO. v. SHRINER et al.
• Court: Alabama Supreme Court

177 So. 897

235 Ala. 65

HOME INS. CO. v. SHRINER et al.

AETNA INS. CO. v. SHRINER et al.

1 Div. 923a, 925a

Supreme Court of Alabama

December 2, 1937

Appeal from Circuit Court, Baldwin County; F.W. Hare, Judge.

Suits by the Home Insurance Company and by the AEtna Insurance Company, respectively, against C.E. Shriner and others, in which respondents filed cross-bills. From a decree denying complainants' petition to establish a note of testimony after a decree for cross-complainants, petitioners appeal.

Reversed and rendered.

Coleman Spain, Stewart & Davies, of Birmingham, for appellants.

Beebe Hall & Beebe, of Bay Minette, for appellees.

FOSTER Justice.

This cause began by the filing of several bills in equity by insurance companies in connection with a fire insurance loss. The cases were consolidated [ (Ala.Sup.) 177 So. 890] and tried as one, including cross-bills resulting in a decree in favor of cross-respondents for certain amounts against the respective companies. The evidence was taken orally before a commissioner, not in the presence of the presiding judge. It came on for hearing on the pleading and proof on which the decree was rendered. The decree recites a submission on the pleading and testimony of witnesses as noted by the register.

The transcript as certified to us contains a note of the testimony offered by respondents, duly signed and marked filed by the register on or about the day of the submission. The transcript as certified shows no note of testimony by appellants. But it appears from this proceeding submitted along with the original cause, that appellants moved the circuit court, in equity, to adjudge and decree that appellants had made a proper note of testimony which should be included in the transcript, and that the court denied said motion, and appellants seek to review such denial by appeal or in the alternative by mandamus. The ruling is properly presented by the appeal. The petition here in question was finally determined by decree. The fact that it is supplementary does not affect the finality of the decree in so far as that proceeding is concerned. Smith v Smith, 218 Ala. 701, 120 So. 167; Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Ex parte Allan, 220 Ala. 482, 125 So. 612; Bailes v. Bailes, 220 Ala. 178, 124 So. 215; Worthington v. Worthington, 224 Ala. 237, 139 So. 334; Bridges v. Bridges, 227 Ala. 144, 148 So. 816.

The trial court heard the evidence orally before it on the supplementary proceeding, and found the facts on said motion as follows:

"With respect to complainants' note of testimony it is made to appear from the hearing on said motion that same was carefully prepared by complainants' solicitors before the submission of the cause and oral argument had in the courtroom at Bay Minette, on December 28th, 1934. Mr. Mead testified that after the preparation of this note of testimony in the office of Hybart and Chason it was placed with the other papers in the file and taken to the courtroom at the courthouse; that he did not recall the actual filing of the paper. The testimony of Mr. Davies is somewhat in conflict with this, Mr. Davies' recollection being that he carried the note of testimony to the register in her office downstairs and asked her to file it. The general effect of the then register's testimony is opposed to this, Mr. Chason knows nothing of what was done with this paper when taken from his office, except that it eventually found its way into the file of papers in the cause, though it was never marked filed by the register.

"Complainants' note of testimony was not signed by the register or ever marked filed by this official.

"Respondents' note of testimony was signed by the register on the day of submission, and endorsed by her as filed on the same date.

"It is further made to appear that on the day of submission all the papers in the cause, including both notes of testimony, were gathered up and placed in the judge's car, and by him carried to his office at Monroeville, so that it was physically impossible for the register to record either of them on that date on the minute book of the chancery court. It further appears that complainants' note of testimony was never recorded on the minutes, and that of respondents' was not recorded on the minutes until after decree was signed and the file returned to the register.

"It will be observed that complainants' solicitors do not contend that they requested the register to sign and adopt as her official act the note of testimony as prepared by them. The most that they claim--and that not positively--is that one of them requested the register to mark the paper filed, which was never done. **

"It appearing without dispute that complainants' note of testimony was never presented to the register for official approval; was never signed by the register, or even marked filed by the register, it results that complainants had no legal note of testimony, and that the paper purporting to be complainants' note of testimony was properly omitted from the transcript on appeal."

It is necessary to review and determine this question first. If we reverse and render a judgment declaring that the instrument submitted was a legal note of testimony by appellants, we will consider it as such and as a part of the transcript on the main appeal.

The evidence having been taken orally before the trial judge, his finding of facts will be taken as conclusive if sufficiently supported by the evidence, but his application of these facts to the law will not be affected by such a presumption. We understand clearly from such finding that the instrument in form of complainants' note of testimony was prepared before the submission and was in the file at the argument and when the cause was under consideration. On that subject the judge made the following statement: "The court: At that point, I want to state...