Mobley v. Turner
Decision Date | 27 May 1977 |
Citation | 346 So.2d 427 |
Parties | Eugene MOBLEY v. Sue F. TURNER. SC 1740. |
Court | Alabama Supreme Court |
Michael A. Figures of Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
J. Milton Coxwell of Coxwell & Coxwell, Monroeville, for appellee.
This appeal involves a boundary line dispute between Eugene Mobley, appellant-defendant, and Sue Turner, appellee-plaintiff. No record was made of the court proceedings. Pursuant to Rule 10(d) of the Alabama Rules of Appellate Procedure (1977), appellant submitted his "Statement of the Evidence" and appellee responded with his. The trial court approved the latter, from which we quote:
On review, we will accept the approved statement of the evidence as true. U. S. v. Chesapeake and Ohio Railway Co., 4 Cir., 281 F.2d 698 (1960); Hawkins v. Missouri Pac. R. Co., 8 Cir., 188 F.2d 348 (1951). Rule 10(c) of the Federal Rules of Appellate Procedure is in substance identical to our Rule 10(d).
The error complained of by appellant is that the trial judge did not follow the procedure outlined by Tit. 47, §§ 5 and 6, Code of Alabama 1940, Recompiled 1958. 1 He contends that § 6 requires the trial judge to file a written decree, and that such a decree does not exist. We cannot agree.
According to the approved statement of the evidence, both parties agreed in open court that a survey would be made and that it would be binding. In Carlisle v. McCleskey, 264 Ala. 436, 87 So.2d 831 (1956), the parties similarly agreed in open court to end their boundary line dispute by having a survey made and by being bound by that survey. The court held the survey was not made via Tit. 47, §§ 2-12, but rather, was in the nature of an arbitration agreement.
We believe Carlisle controls this case. However, even if Tit. 47, §§ 5, 6 applied, the trial judge would not be placed in error where appellant made no complaint of his procedure; even appellant's statement of the evidence makes no claim to have complained of the judge's procedure.
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