Brassell v. Brassell

PER CURIAM. [1, 2] The record in this case fails to disclose a note of testimony as required by chancery rule 75 (Code of 1907, p. 1551). This rule expressly requires that testimony not offered as there provided and noted by the register on the minutes must not be considered as any part of the record. The trial court having granted the complainant relief, and the record disclosing no legally noted testimony in support of same, this decree, must be reversed upon the authority of the recent case of Lunday v. Jones, 85 South. 411.1 See, also, Potts v. Commissioner’s Court, 203 Ala. 300, 82 South. 550, and numerous cases there cited. The agreement of counsel as to taking the testimony, on page 6 of the record, cannot affect or change the result. The agreement does nothing more than to consent to what the trial court was authorized to do under the Act of 1915, p. 705, and said act in no wise abrogates, alters, or modifies rule 75 or excuses a noncomplianee therewith. While the opinion of the court in the Lunday Case, supra, makes no reference to the above-cited-act, it was considered and is referred to in the dissenting opinion of Justice Gardner. It was, In effect, held in said Lunday Case that rule 75 was in full foi-ce and effect and was mandatory, and we now expressly hold that the act of 1915, p. 705, in no wise alters or modifies said rule or excuses a noncompliance therewith. The decree of the circuit court is reversed, and the cause is remanded. Reversed and remanded. All Justices concur, except GARDNER, J., who dissents.