O'Rear v. O'Rear

This appeal is from the decretal order of the circuit court denying appellant's motion to substitute an alleged lost note of testimony, such as is required by rule 75 of Chancery Practice on the submission of a cause in equity, for final decree upon pleadings and proof. The note of testimony is alleged to have been filed on the submission of the cause on exceptions to the special register's report on reference.

The motion was denied for the reason, as appears from the opinion of the trial judge, that he was not reasonably satisfied from the evidence, consisting of affidavits offered by the parties, that the contents of the paper proposed to be substituted were in all respects the same as the lost paper, or that said lost paper was presented to, approved, and filed by the register.

We are of opinion that whether or not this ruling was erroneous, it is error without injury.

Rule 75 is not applicable to such submissions. Whetstone et al. v. McQueen, 137 Ala. 301, 34 So. 229; Hayden v. Smith,216 Ala. 428, 113 So. 293.

The only notation of testimony required on such submission is that required by section 6598 of the Code and rule 93 of Chancery Practice. O'Rear v. O'Rear, ante, p. 403, 150 So. 502.

Therefore, if the motion had been granted the substituted paper had no office to serve.

Affirmed.

All the Justices concur.