Lunday v. Jones

• Decision Date: 14 February 1920
• Docket Number: 4 Div. 830
• Citation: 204 Ala. 326,85 So. 411
• Parties: LUNDAY et al. v. JONES et al.
• Court: Alabama Supreme Court

85 So. 411

204 Ala. 326

LUNDAY et al. v. JONES et al.

4 Div. 830

Supreme Court of Alabama

February 14, 1920

Rehearing Denied June 3, 1920

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Bill by W.H. Jones and another against H.S. Lunday and another to set aside a conveyance as a fraud upon creditors.From the decree entered, the respondents appeal.Reversed and remanded.

Gardner and Somerville, JJ., dissenting.

W.W Sanders, of Elba, for appellants.

A.R Powell, of Andalusia, for appellees.

PER CURIAM.

The majority of the court, consisting of ANDERSON, C.J McCLELLAN, SAYRE, THOMAS, and BROWN, JJ., are of the opinion that the cause should be reversed for the reason there was no note of testimony as required by Chancery Practice Rule 75(Code 1907, p. 1551), under the authority of the recent case of Potts v. Court of Com'rs,82 So. 550, and the several authorities therein cited.

It therefore results that the decree is reversed, and the cause remanded.

Reversed and remanded.

GARDNER J. (dissenting).

The cause was assigned to the writer, and the following opinion prepared; but upon consideration of the cause in consultation the opinion did not meet the approval of the majority.While only a question of practice is involved, yet as it is very important in the administration of justice, and works a great hardship in the reversal here of a well-sustained decree, I deem it a matter of sufficient importance to express my views as stated in the opinion originally prepared, as follows:

On the trial of this equity suit the judge ordered that the testimony be taken orally in open court, as provided by the Act of September 22, 1915(Acts 1915, p. 705).The oral testimony was taken down by the official court stenographer, transcribed by him and filed, and appears in this record duly signed by said stenographer.Complainants examined all their witnesses orally, and respondents likewise examined their witnesses, with the exception of two of respondents' witnesses who were examined prior to the hearing by interrogatories, and these depositions were offered in evidence.The transcript of the evidence discloses the examination and cross-examination of each witness examined orally, and in whose behalf such witness was offered.

The note of testimony does not appear in the record, and this is the sole ground upon which the appellants rest for a reversal of this decree, citing Reese v. Barker,85 Ala. 474, 5 So. 305;Turner v. Turner,193 Ala. 424, 69 So. 503.

In the recent case of Kelley v. Chandler,200 Ala. 215, 75 So. 973, this rule in regard to the note of testimony was referred to; and I deem it not inadvisable to call attention to the fact that the testimony there considered was not heard orally before the court as provided by the above-cited statute.

The only question therefore to be here considered is whether or not the strict rule as adhered to in our previous decisions in regard to the necessity of testimony being noted, as required by Chancery Practice Rule 75, is to be applied to an equity cause heard orally in open court.While the statute is silent in this respect, yet I entertain the view that the rule is not applicable to cases of that character.

Prior to the above-cited statute of 1915, testimony in chancery causes, upon which submission was had for final decree, was not heard orally before the court(sections 3139,3141,Code 1907), but reached the chancellor in record form.One of the principal purposes to be served by this rule, therefore, was to aid the chancellor in his investigation of the cause and the examination of the proof, and, also, to furnish some information to this court as...