Conner v. State Ex Rel. Perry , 212 Ala. 360 ( 1925 )

Appellant's objections to the decree rendered in this cause after its remandment to the trial court on a former appeal (Conner v. State, 211 Ala. 325, 100 So. 474) are, for the most part, based upon his contention that E. C. Himes, who issued process purporting to bring him into court, noted the testimony, approved the security for costs, issued the citation of appeal, and certifies to the transcript of the record as deputy clerk and register of the Bessemer division of the circuit court of Jefferson, had and has no authority in the premises, for the reason that he has not been appointed by the judge of that court to the office which he is assuming to fill. But it appears that said Himes is in possession and discharging the duties of the office of register for the Bessemer division of the circuit court with the approval of the judge, and under circumstances indicating the acquiescence of the public, and is at least de facto register of said court. We do not find that he has an appointment as register for the Bessemer division of the circuit court, but he is eligible to such appointment under section 165 of the Constitution, and, at any rate, his right to discharge the duties of the office cannot be questioned in any cause to which he is not a party. 10 Mich. Dig. p. 698, § 17; 29 Cyc. 1389; Code 1923, § 2583.

The note of testimony recites a submission upon the original bill of complaint, answer, and the depositions of witnesses named. But in fact the record shows that the original bill had been amended to cure a misdescription of the property sought to be condemned. Upon this state of the record, appellant insists that the decree condemning the property by its description in the amended bill was error. It is customary, and not improper when correctly done, to note the pleadings in the note of submission; but such notation is wholly unnecessary, for the court looks to the record for the pleadings, the only necessary office of the register's note of submission being to specify the evidence upon which the cause is submitted. Rule 75 of the chancery court, p. 930 of the Code.

The decree is not in the best shape, but when construed with reference to the pleadings, as it must be, it sufficiently shows that the property described in the amended bill as the property of defendant is condemned on the ground that it had been used in violation of the statute. Of course only the interest, right, and title of the defendant named in the bill could be condemned, and that the decree does. It could do no more.

Section 6575 of the Code of 1923 (Act Sept. 22, 1915, p. 705) requires that, when witnesses are examined orally in open court, as was done in this case, the testimony shall be taken down as delivered and transcribed, certified and filed in the cause, and in such case, as well as when the testimony is taken by depositions, a note of it is necessary. Crews v. State,206 Ala. 101, 89 So. 205, and cases there cited. The statute was not followed in this case, but the transcript shows a bill of exceptions taken by appellant as in the case of a trial at law, and purporting to contain all the evidence, the same being the testimony noted by the register. This was irregular, but the transcript of the record in its present shape suffices to show the evidence upon which the court based its decree, and the purpose of the statute has been served.

The decree is affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.