The original opinion is now corrected pursuant to suggestion by counsel that the local statute fixed the term of court for the Bessemer division of the circuit court. Local Acts 1919, p. 62. Washington v. Waldrop, Clerk, 204 Ala. 109, 85 So. 383. When that act is applied to the procedure taken in this case, before and to the time of the first appeal, and the abandonment of that appeal by the parties, the result we have heretofore announced is unchanged. Where the term of the court was terminated by operation of law, pending causes from the 1922 term (where there was
no discontinuance recognized by the law [Smith v. State,149 Ala. 53, 56, 43 So. 129]) were continued, without a general or special order to that effect, to the succeeding term. We have heretofore indicated that there was no discontinuance of this case before final decree for the failure of orders of continuance or for the failure to enter judgment on the verdict during the 1922 term of said circuit court.
The date of the judgment on the verdict of the jury in a case like that before us was not the subject of A., T. N. Ry. Co. v. Aliceville Lbr. Co., 199 Ala. 391, 398, 399, 403, 408,74 So. 441, a damage suit for wrongful destruction of property by fire, and it was not declared by that opinion to be required of entry as of the date of rendition of the verdict of the jury. In the case of Ex parte Colvert, 188 Ala. 650, 65 So. 964, the question of time when the decree must be entered or bear date was not considered; the question of application for a "new trial," required to be directed to the chancellor, was passed upon. This, of necessity, would require time to intervene, after the verdict and before formal decree. In Lanier v. Russell, 74 Ala. 364, a contest of the probate of a will before a jury, the declaration was made that "a judgment, following a verdict, takes effect as of the day the verdict was rendered, unless there is something in the record showing itwas not pronounced on that day." (Italics supplied.) And in Lanier v. Richardson, 72 Ala. 134, the application was for mandamus in matter of entry of judgment on verdict establishing the will; and it was there held that "the judgment necessarily follows the verdict, as in an action at law; and the verdict being rendered on Saturday morning, while the court is in session, the judgment is properly entered and dated as of that day, although the entry was not actually made until 10 o'clock at night, after the expiration of office hours." The opinions in the last two cases were written by Judge Stone, and, apparently, in the same controversy, or branch thereof. His expression in the last opinion (Lanier v. Russell, 74 Ala. 364,368) was that the judgment "takes effect as of the day the verdict was rendered, unless there is something in the record showing it [the decree or judgment] was not pronounced on that day" — meaning the day on which the jury returned the verdict. (Italics supplied.) The date of the final decree was that of its rendition, February 16, 1923.
There was appearance in this court, on submission of the case, by all necessary parties. L. N. R. Co. v. Shikle,206 Ala. 494, 90 So. 900. Appellants' counsel point to the fact that the guardian ad litem for the minor respondents assigned error in this court, and "joined in briefs and original submission in this case." This action was with the other appellants, W. H. Lewis et al., except the respondent George Lewis Martin. The latter duly appeared by counsel at the submission of the case in this court, and assigned no error. The assignments of error for the other respondents in the court below contained, among others, this assignment:
"(326) The trial court erred in rendering the final decree in the absence of a note of testimony as to the two minors, David L. Rosenau, Jr., and Margaret Rosenau."
Our attention is not called to any assignment of error challenging the regularity of the proceeding in the lower court as to respondent George Lewis Martin's failure to submit on a note of testimony, or the lack of any pleadings as to him.
The record contains no request for submission for final decree or note of testimony for the said minors or George Lewis Martin. However, there was ample evidence to support the decree pursuant to the verdict of the jury, and of this due submission was made by the other parties, respectively, and note of testimony thereof by the complainant and the respondents — other than the minors and George Lewis Martin. In the cases cited (Lundy v. Jones, 204 Ala. 326, 85 So. 411; Brassell v. Brassell, 205 Ala. 201, 87 So. 347; Milam-Morgan Co. v. State, 205 Ala. 315, 87 So. 348; Blackburn v. Moore,206 Ala. 335, 89 So. 745) there was no note of testimony as required by chancery rule 75, p. 1551, Code 1907. Hence there was no evidence before the court to support or to authorize the respective decrees in said cases. In Potts v. Court of Commissioners, 203 Ala. 300, 82 So. 550, the effect of the note of testimony required by the rule was indicated — to limit the consideration to evidence so noted. See, also, Mason v. American Mortgage Co., 124 Ala. 347, 26 So. 900. No reversible error intervened on the submission for final decree on notes of testimony indicated.
We have re-examined the entire evidence given by Mrs. Marsh and Mrs. Fenwick, objections reserved thereto, and motions to exclude, and find that no reversible error was committed by the court in permitting these witnesses to give an opinion as to the sanity or insanity of testatrix. Woodward Iron Co. v. Spencer, 194 Ala. 285, 289, 69 So. 902.
The question of competency to answer the questions indicated rested upon the sound discretion of the court. Wear v. Wear,200 Ala. 345, 76 So. 111; Johnson v. Johnson, 206 Ala. 523,91 So. 260. The exercise of this "sound discretion" by the court will not be revised, unless it "clearly appears to have been erroneous." Parrish v. State, 139 Ala. 16, 42, 36 So. 1012.
It was not our intention, in the opinion rendered, to convey the idea that exceptions were not duly taken to the several portions of the oral charge, and as specifically indicated
in the bill of exceptions. We have again considered said exceptions, and, when the oral charge is considered as a whole and in connection with the many given charges, there was no reversible error in the oral charge, and the jury were sufficiently instructed.
The application for rehearing is overruled.
Overruled.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.