O'Kelley v. Clark

ANDERSON, J.

— It is a well-settled rule in equity practice that a defendant will be granted affirmative relief only on cross-bill. — 5 Encyc. of PI. & Pi. p. 634. There are, however, several exceptions to this rule, and it has been generally held that a defendant in a suit in equity for an accounting may have affirmative relief without filing a cross-bill or counterclaim therein. This exception is as well settled and uniformly applied as the rule itself. — Downes v. Woarch, 28 R. I. 99, 65 Atl. 603, 13 Ann. Cas. 647; see note wherein the cases are collected. This exception to the rule, as to no necessity for a cross-bill, in cases for a settlement and accounting, in order for the respondent to get a decree against the complainant, is fully recognized and approved by our own court in the case of Masterson v. Masterson, 32 Ala. 437.

It may be true that rule 88, p. 1555, of the Code of 1907, requires that testimony before the register must be noted by him, and that nothing not so offered shall be considered, but this rule does not preclude the parties to the cause from making agreements as to what facts, documents, or exhibits may or may not be considered by the register. It appears that before the report was made the parties entered into an agreement to the effect that, upon the reference, all the testimony heretofore taken in the cause by each party, including the testimony of •the respondent on the reference heretofore held by the register and already referred to, may be used and considered by the register in making his report.

We will therefore assume that the register considered all the evidence, whether specifically noted or not, unless his report affirmatively shows that he did not. While the report recites that he examined the complainant orally, and the hooks as introduced by him, it also recites that the reference was held under the agreement, and that both parties and their attorneys were present, and it does not negative the fact that other evidence covered by the agreement was not considered by him.

Where evidence is conflicting, the finding of the register has the same weight as the finding of the jury, and this court will not disturb it unless palpably erroneous. —McKenzie v. Matthews, 153 Ala. 437, 44 South. 958. The finding by the register will be treated as the verdict of a jury, and not disturbed unless it would warrant a judge in setting aside the verdict under similar circumstances. — Denman, v. Payne, 152 Ala. 342, 44 South. 635.

We are not prepared to say that the register’s report was not warranted by the evidence, or that it was palpably contrary to the weight of the evidence.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Graffeneied, JJ., concur.