Page v. Harris , 247 Ala. 323 ( 1945 )

The petitioner's difficulty here and in the Court of Appeals was that the statement of counsel for plaintiff in the closing argument, which defendant's counsel "challenged," does not appear in the transcript of the proceedings made and certified by the reporter, nor did the appellant challenge the correctness of said transcript, as he had the right to do under Rule 48 adopted by this court [245 Ala. p. xxi] effective June, 28, 1944, some months before the case was tried in the circuit court.

Therefore, conceding that the challenge by petitioner's counsel of the statement made by counsel for the adversary was an objection, as the trial court seems to have treated it, petitioner's right to review was not affected by the action of the trial court in ordering counsel for petitioner to resume his seat. Petitioner's remedy was to pursue the course pointed out by said rule, and to move to have said statement incorporated in the record. If the judge refused to incorporate it on proper showing, his action in that respect, as well as the question raised by the objection to the statement, was subject to review on appeal by error properly assigned.

Our judgment is that the Court of Appeals properly disposed of the case and the writ of certiorari is due to be denied. So ordered.

Writ denied.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.