Layfield v. Lewis

On Rehearing

SIMPSON, Justice.

From an unfavorable decree the respondent in the lower court appealed and the complainant cross-appealed; the decree of the lower court was modified and affirmed by this Court. In answer to the question raised by appellant on rehearing, we conclude that each party pay his own costs of the appeal. See Adams v. Whitehead, 234 Ala. 389, 175 So. 356; Clark v. Glenn, 249 Ala. 342, 31 So.2d 507; Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463; 20 C.J.S.Costs §§ 319, 322; 14 Am.Jur., §§ 91, 98.

In support of his application for rehearing, counsel for appellees has included in his brief an affidavit by Donald C. Lewis, one of the appellees, reciting events which are not included in the record and which have transpired since the rendition of the opinion. Manifestly, such matters can not be considered by this Court. Christian v. Reed, 265 Ala. 533, 92 So.2d 881; White v. State, 262 Ala. 694, 81 So.2d 267; Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633; Ward v. Torian, 216 Ala. 288, 112 So. 815.

In the opinion in chief the decree of the lower court was inadvertently and erroneously referred to as requiring appellees to pay to appellant the sum of “$30.00 per month plus 3% interest on the original debt”. The lower court in fact held that appellees should pay to the appellant the sum of $30 per month, which sum includes interest at the rate of 3%. Appellees, on rehearing, point out the above and suggest that the opinion of this Court, based upon a misunderstanding of the decree of the lower court, was founded in error.. The misquoting of the lower court’s decree was, as heretofore observed, the result of inadvertence and not the result of a misunderstanding of the decree itself. For purposes of clarity, however, we reaffirm our ruling that there was no error on the part of the trial court in enforcing the original terms of the altered instrument, that is, the terms of the instrument prior to the alteration wherein the appellees are required to pay to the appellant the sum of $30 per month, which sum includes interest at the rate of 3%. Authorities, supra.

To the extent mentioned our original opinion is corrected and the application for rehearing is overruled.

So ordered.

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