Daniels v. Bona Fada Federated Club 1979-80 Members

403 So. 2d 255, 1981 Ala. Civ. App. LEXIS 1258

Opinion

HOLMES, Judge.

The plaintiff sued the defendants in the Small Claims Court of Montgomery County. After trial, a judgment was entered in favor of defendants.

The plaintiff appealed to the Circuit Court of Montgomery County. The Circuit Court of Montgomery County entered the following judgment:

This matter is presented to the court on the pleadings, testimony of the parties and their witnesses taken ore tenus, and documents admitted as evidence.

Upon consideration thereof, the court is of the opinion and finds that judgment is due to be entered in favor of defendants. It is therefore ORDERED that judgment be entered in favor of defendants and against plaintiff with costs taxed against plaintiff for which let execution issue.

From the above it is clear that testimony was taken in the circuit court. This testimony is not contained in the record.

Where no transcript of any evidence taken orally before the trial court is before the reviewing court, review of propriety of the trial court’s conclusion thereon is precluded and it is presumed that the omitted evidence justified the trial court’s action. Park v. Elliot, 282 Ala. 110, 209 So.2d 393 (1968); 2 Ala. Digest Appeal & Error Key 695(1).

Additionally, errors, if any, committed below must be affirmatively demonstrated by the record before this court. Summerlin v. Bowden, 353 So.2d 1175 (Ala.Civ.App.1978). If the record does not disclose the facts upon which the alleged error is based, such error may not be considered on appeal. Clevenger v. State, 369 So.2d 563 (Ala.Civ.App.1979). The instant record does not so disclose.

We would further note that both parties have totally failed to comply with rule 28, A.R.A.P. Hence, review is precluded.

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.