Cooper v. Cooper

The foregoing statement of the case sufficiently discloses the character of the suit here involved. Upon submission of the cause for final decree, the trial court rendered a decree, declining to make the injunction theretofore issued permanent, but ordering that the preliminary injunction should remain in force subject to the further action of the court until the rights of the parties, as to the real estate involved, should be settled within a reasonable time thereafter by the complainants or by an appeal by either party in the cause then pending in that court, involving litigation between these parties as to the same property.

Where the facts are sufficient, the course here pursued has met with approval in former decisions of this court. Driver v. New, 175 Ala. 655, 57 So. 437; Hamilton v. Brent Lumber Co.,127 Ala. 78, 28 So. 698; Chappell v. Roberts, 140 Ala. 324,37 So. 241; Ashurst v. McKenzie, 92 Ala. 484. 9 So. 262; McMillan v. Aiken, 182 Ala. 303, 62 So. 519.

In the note of submission, it appears that the complainants submitted the cause, omitting any reference to the pleadings, upon the depositions of W. L. Britt, George Britt, J. B. Cooper, and W. R. Cooper. The record in this cause does not contain the depositions of any of these witnesses. The decree of the court recites that the submission was had upon testimony as noted.

In McPherson v. Hood, 191 Ala. 146, 67 So. 994, speaking of a situation analogous to that here presented, the court said:

"It has long been the established practice in this jurisdiction that the omission from the record, on appeal from a decree rendered on pleadings and proof, of matters of evidence embraced in the submission of the cause, gives rise and effect to the presumption that the decree was sustained by the proof. * * * This presumption results from the obligation the appellants assume to affirmatively show error in the decree assailed."

Under this well-recognized and long-established rule therefore, and the situation as here presented, this court must presume that the evidence noted, but not appearing in the record, was sufficient to justify the action of the court in entering the decree rendered in this cause, and must result in an affirmance thereof.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.