Duvall v. Marshall

Opinion op the Court by Judge Tilford Affirming. This action was instituted in equity and the testimony heard orally by the court. The clerk’s transcript, shows that an order was entered on the day of the trial,, March 18, 1938, reciting that by agreement of the parties, Mrs. Hazel Bennett was sworn to take stenographic notes in the case, and the judgment entered on the same day recites that the evidence was heard orally in open court and taken by the official stenographer. Assuming, but not deciding, that this was a sufficient compliance with Subsection 2 of Section 552 of the Civil Code of Practice, which requires that an order directing the proof to be taken orally in an equitable1 action must be entered before the proof is taken, it was nevertheless essential that a bill of exceptions be prepared and filed in the same manner as in a common law case. City of London v. Barnett, 228 Ky. 471, 15 S. W. (2d) 286; South v. Truesdale, 233 Ky. 682, 26 S. W. (2d) 519. The record fails to show the filing of a bill of exceptions or any order with respect thereto. On August 31, 1938, the transcript of record and the transcript of evidence, together with a paper dated August 30, 1938, styled “Bill of Exceptions” and bearing the *82 signature of the trial judge, were filed in’ the office of the Clerk of this Court, but' nothing appears on this paper to indicate that it was ever filed elsewhere. Under these circumstances we are without, power to consider the paper styled “Bill of Exceptions” or the testimony to which it refers. Lundy v. Hunt, 210 Ky. 803, 276 S. W. 838. Since the pleadings are sufficient to sustain the judgment we have no alternative but to affirm it. Judgment affirmed.