Wilson v. Howard ( 1957 )

On Rehearing

STAKELY, Justice.

In support of his application for rehearing appellee contends that we were in error in reversing the decree below for the reason that appellant’s evidence was not certified by the reporter as required by Equity Rule 56, Code 1940, Tit. 7 Appendix, and was not, therefore, properly before us. The evidence in the case was in part ore tenus before the court and in other part by deposition. The testimony of the respondent (appellant here) was given orally before the court, and at the end of it the record shows a purported certificate of correctness with a blank line under the words “Court Reporter,” and with no name signed or typewritten. At the end of the testimony for complainant (appellee here) there appears the Reporter’s Certificate which we reproduced and treated in the original opinion above. We overlooked this unsigned certificate on original consideration.

If it be conceded that the absence of a proper certificate by the court reporter would prevent consideration of appellant’s testimony (as to this see Bentley v. County Commission, 264 Ala. 106, 108, 84 So.2d 490), that is a matter immaterial to the ultimate question here involved, which is, did the husband show such a change in the condition of the parties as to warrant modification of the original support decree? Eliminating entirely the evidence offered by the wife, the result must be the same. The evidence on behalf of the husband wholly fails to show any such changed conditions as may be made the basis for a modification of the former decree. We adhere to the conelusion reached and stated in the original opinion.

Rehearing denied.

LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.