Smith v. Smith

• Decision Date: 20 April 1990
• Citation: 565 So.2d 72
• Parties: Norman SMITH and Vicenta Smith v. Roland SMITH and Dee Smith. 88-1399.
• Court: Alabama Supreme Court

Page 72

565 So.2d 72

Norman SMITH and Vicenta Smith v. Roland SMITH and Dee Smith.

88-1399.

Supreme Court of Alabama.

April 20, 1990.

Rehearing Denied May 18, 1990.

Norman Smith and Vicenta Smith, pro se.

F.A. Flowers III and John F. De Buys, Jr. of Burr & Forman, Birmingham, for appellees.

STEAGALL, Justice.

This appeal involves a boundary line dispute between coterminous landowners. The plaintiffs, Norman Smith and his wife, Vicenta Smith, appeal from a judgment of May 11, 1989, in favor of the defendants, Roland Smith and his wife, Dee Smith. The plaintiffs were represented by counsel at trial; they prosecute this appeal pro se. The record on appeal consists of the clerk's record and a supplemental record. No transcript of the evidence in the original trial is included.

We find that this case is controlled by this Court's decision in Seidler v. Phillips, 496 So.2d 714 (Ala.1986), wherein we stated:

"[When a case is presented ore tenus to the court, without a jury, the trial court's] findings of fact are presumed correct, and this Court will not reverse a judgment based on those findings unless it is plainly erroneous or manifestly unjust. This presumption of correctness in ore tenus cases is especially strong in adverse possession cases because the evidence in adverse possession cases is usually difficult to weigh from the vantage point of an appellate court. Witnesses in adverse possession cases frequently testify to the existence of 'lines, locations, distances, monuments, culverts, fences and the like' by pointing or verbally referring to a diagram.

"....

"The burden is on the appellant to present a record containing sufficient evidence to warrant a reversal. The appellant cannot state or argue facts in brief that are not supported by the record. Four pages of appellants' statement of the facts are taken up with a narration of supposed testimony of witnesses, and throughout the argument portion of the brief, counsel refers to supposed testimony of various witnesses, but none of it is supported by the record and this Court should not, and does not, consider it.

"....

"We assume, on review here, that the trial judge found facts that would support the judgment rendered. This Court has also held that when all the evidence before the trial court is not before this Court, it is presumed that the missing evidence is sufficient to support the judgment and the judgment not be disturbed.

"Although there is no clear evidence in the record to...