Freeman v. Freeman

350 So. 2d 1048, 1977 Ala. Civ. App. LEXIS 755

• Court: Court of Civil Appeals of Alabama
• Decided: October 12, 1977
• Docket: Civ. 1242
• Status: Published

Opinion

HOLMES, Judge.

This is an appeal from the Circuit Court of Colbert County. The trial court found the appellant-husband owed the wife a sum of money and ordered certain property of the husband’s sold. The money owed to the wife by the .husband arose from a previous decree of divorce. The husband has appealed and we affirm.

The husband’s argument for reversal of the trial court’s action is as follows:

“The Appellant strongly urges that the Circuit Court of Colbert County, Alabama, did on the 2nd day of July, 1975, judicially decide and determine the exact issues presented by the petitioner’s petition and thereby the petition of the Appellee filed the 14th day of February, 1977, is res judicata. Gray vs. Gray, [91 Fla. 103] 107 So. 261, Irvin [Irwin] vs. Alabama Fuel and Iron Company, [215 Ala. 328] 110 So. 566.”

The husband did file an answer to the wife’s petition and one aspect of this answer is what was formerly referred to as a plea of res judicata. However, this court has diligently searched the record and we find no action or ruling by the trial court regarding the answer of res judicata. Additionally, we cannot from the record before us determine whether this question was in fact even considered by the trial court.

Suffice it to say that matters not ruled upon by the trial court cannot be considered on appeal. Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (1973); Dorroh v. Jefferson County, 264 Ala. 335, 87 So.2d 619 (1956); 2 Ala.Dig. Appeal & Error «8=»242(1).

The case is due to be and is affirmed.

AFFIRMED.

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