Opinion
6 Div. 785.
October 16, 1941. Rehearing Denied November 27, 1941.
Appeal from Circuit Court, Blount County; W. M. Rayburn, Judge.
J. T. Johnson, of Oneonta, for appellant.
Tom B. Ward, Jr., and J. Monroe Ward, both of Tuscaloosa, for appellee.
It appearing from the transcript that the testimony of several witnesses who testified orally in behalf of appellee does not appear in the record, the decree should be affirmed. Allen v. Allen, 223 Ala. 223, 135 So. 169; Broughton v. Broughton, 17 Ala. App. 255, 84 So. 635.
This appeal is from the final decree rendered on a submission of the cause on pleading and proof, and is submitted here without suggestion of diminution of the record or motion for certiorari to perfect it under Supreme Court Rule 19.
Rule 19, supra, provides the parties, on the suggestion of a diminution of the record and motion for certiorari, a remedy to perfect the record, and it was the duty of appellant before submitting her case to pursue this remedy, but having submitted the case without doing so, the Court has no alternative but to dispose of the case on the record as it now stands.
Respondent's note of testimony shows that he submitted his case upon, among other things, the testimony of H. Leroy McGriff, Mrs. Josephine M. Henly, Marcus T. McGriff and Mrs. Grace B. McGriff. The testimony of these witnesses does not appear in the record.
Appellant assigned the following errors:
"1st. The said court committed error in denying to the complainant any relief as prayed for in her bill of complaint.
"2nd. The court committed error in denying to complainant the relief prayed for in her bill of complaint.
"3rd. The court committed error in decreeing that the alleged divorce decree rendered on the 7th day of April 1936 is a valid, binding and effective decree of divorce between the appellant and the appellee.
"4th. The court committed error in failing to enter a decree annulling the former decree of the equity court rendered on the 7th day of April 1936, in which the parties to this suit were divorced."
It appearing that the record does not contain all the evidence upon which the case was submitted to the trial court, we cannot review the findings on the facts. Hogg v. Jenifer Iron Co., 215 Ala. 683, 112 So. 207; Allen v. Allen, 223 Ala. 223, 135 So. 169; Wood v. Wood, 119 Ala. 183, 24 So. 841.
Affirmed.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.