Opinion delivered March 18, 1946. Rehearing denied April 15, 1946.
1. APPEAL AND ERROR — FAILURE TO COMPLY WITH RULE 9. — An appeal will be dismissed for failure to comply with Rule 9, although it would be affirmed if the rule had been complied with, for the reason that the testimony upon which the decree was rendered has not been brought into the record. 2. APPEAL AND ERROR. — In the absence of the testimony on which the decree was based there is a conclusive presumption that the omitted testimony was sufficient to sustain the finding.
Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor; affirmed.
E. M. Watson, pro se.
Burke, Moore Walker, for appellee.
This is the third appeal of this case. The first appeal was ordered dismissed in an opinion not published in our reports (202 Ark. 1197), but published in 149 S.W.2d 563, for non-compliance with Rule 9.
It was held in the opinion on the second appeal, 208 Ark. 205, 185 S.W.2d 936, that the decree from which the appeal came would have to be affirmed, for the reason that oral testimony heard at the trial had not been preserved and brought into the record.
The present appeal must also be dismissed for noncompliance with Rule 9, although the decree would be affirmed even though the rule had been complied with, for the reason that the testimony upon which the decree was rendered has not been brought into the record. There appears in the transcript now before us a complaint which alleges that the decree from which the second appeal was prosecuted had been obtained by fraud. There was an answer denying this allegation which pleaded the previous adjudication of the issues which the complaint sought to raise.
There appears also in the present record an ex parte statement in the form of an affidavit, not taken as a deposition consisting of questions and answers. There then follows the decree from which is this appeal, which recites that the cause was heard on oral and documentary evidence, none of which appears in transcript. It was said in the opinion on the second appeal that in the absence of the testimony a conclusive presumption would be indulged that the omitted testimony sustained the finding upon which the decree was based. Here the decree must be affirmed for the same reason, even though Rule 9 had been complied with.
The decree must therefore be affirmed, and it is so ordered.