Opinion
4 Div. 44.
May 1, 1972.
Appeal from the County Court, in Equity, Houston County, Don P. Bennett, J.
Smith Smith, Dothan, for appellant.
If justice requires the Court, on motions, may set aside the submission for the purpose of amendment or further testimony. Equity Rule 67; Brittain v. Commercial Natl. Bank of Anniston, 239 Ala. 506, 195 So. 739. It is abusive of discretion for the court to deny respondent's motion to withdraw the case from submission for additional testimony when it appears from the testimony that the respondent has meritorious defense and has failed to bring forward this defense because of influences exerted upon him by the complainant causing him to sign a waiver of notice of taking of testimony and when it clearly appears that neither party will be prejudiced by allowing additional testimony to be taken. Equity Rule 67; Howard v. Cooke, 238 Ala. 317, 191 So. 341.
Farmer Farmer, Dothan, for appellee.
If justice requires, the Court on motion may set aside the submission for the purpose of amendment or further testimony. Equity Rule 67. Construing this rule the Supreme Court of Alabama has held that this is a matter of discretion, such as continuances and the like. Such discretion is to be exercised as in the judgment of the judge the ends of justice require. Howard v. Cooke et al., 238 Ala. 317, 191 So. 341; Brittain et al. v. Commercial Natl. Bank of Anniston, 239 Ala. 506, 195 So. 739.
Suit for divorce, custody and support was begun by appellee, Sharon Ann Cureton. Appellant demurred to the bill of complaint, demurrer was overruled and a general answer was filed. Motion was made by appellee for oral hearing before the Court. The motion was granted and hearing ore tenus set for August 18, 1971. On July 29, 1971, after consulting his counsel, appellant filed an answer and waived further notice of the proceedings in the case. Testimony of appellee was taken before a commissioner, an agreement as to division of property, custody of the minor child and support for the child was filed, and the matter was submitted to the Court for final decree.
Prior to a decree, appellant filed motions for permission to withdraw his answer and waiver and to withdraw submission of the cause for final decree. Hearing on the motions was held by the Court on September 13, 1971 and the same were denied. A decree of divorce on the ground of cruelty was granted to appellee on September 14, 1971. The decree incorporated the terms of the agreement previously filed by the parties.
Appellant has appealed from the decree for final divorce and assigns as error the denial of the motions to withdraw the answer and waiver and the submission of the cause for final decree.
Equity Rule 67 provides:
". . . If justice requires, the court on motion or of its own motion may set aside the submission for the purpose of amendment or for further testimony."
The granting or refusal of such motion is clearly within the sound discretion of the court and such discretion when exercised will not be altered on appeal except for a clear abuse. Ex parte State ex rel. Brittain, 237 Ala. 164, 186 So. 148; Howard v. Cooke, et al., 238 Ala. 317, 191 So. 341; Yeend, Adm'r v. Weeks, 104 Ala. 331, 16 So. 165, 53 Am.St.Rep. 50; Magruder v. Campbell, 40 Ala. 611.
The Court in this case heard extensive testimony offered in support of the motions. We have carefully reviewed the testimony and find nothing therein which indicates an abuse of discretion or that justice required a withdrawal of submission and the taking of further testimony on the merits of the bill of complaint and answer thereto. We find no necessity for a review of the testimony offered in support of the motions.
The decree of the court below is hereby affirmed.
Affirmed.