Gaines v. Gaines

Supreme Court of Alabama

Gaines v. Gaines

472 So. 2d 1033, 1985 Ala. LEXIS 3919

CourtSupreme Court of Alabama

DecidedJune 7, 1985

Docket84-146

StatusPublished

Cited by3 cases

This text of 472 So. 2d 1033 (Gaines v. Gaines) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gaines v. Gaines, 472 So. 2d 1033, 1985 Ala. LEXIS 3919 (Ala. 1985).

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Opinion

FAULKNER, Justice.

This is an appeal from a judgment of the trial court ordering a sale of land owned by tenants in common and division of the proceeds of sale.

This appeal alleges error because the trial judge did not permit any evidence of repairs to real estate made by a remainder-man before the death of the life tenant. This allegation of error arises from an off-the-record conference between the trial judge and opposing counsel.

During the course of the trial, James sought to introduce evidence of repairs that he personally paid for that were made on the property occupied by Maud Gaines, the life tenant and mother of James and Cecil Gaines, the remaindermen. The record shows that James attempted to prove those repairs that occurred before the death of his mother. The trial judge stopped the questioning and called both lawyers into his chambers. It was there, James says in his brief, that the judge said there would be no more questioning of repairs made before the death of Maud. There was no objection by James, and the record does not contain the contents of the off-the-record conference between the judge and the counsel. This refusal to permit that evidence is the principal issue on appeal.

This Court cannot consider evidence that is not in the transcript of the proceedings in the trial court. American Benefit Life Insurance Company v. Ussery, 373 So.2d 824 (Ala.1979). Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So.2d 90 (1963).

[1034]*1034A second issue on appeal is Cecil s motion to dismiss the appeal because James’s brief was not filed within 28 days after November 28, 1984, the date shown on the certificate of completion of record on appeal by the trial clerk. Rule 31, A.R. A.P. It is provided by Rule 2, A.R.A.P., that an appeal may be dismissed if appellant’s brief is not filed in accordance with Rule 31. In this case, James filed a pro se brief, and under Rule 2(b), A.R.A.P., we accept his reasons for lateness.

The motion to dismiss the appeal is denied.

The judgment of the trial court is affirmed.

MOTION TO DISMISS DENIED; AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.

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FAULKNER, Justice.

This is an appeal from a judgment of the trial court ordering a sale of land owned by tenants in common and division of the proceeds of sale.

This appeal alleges error because the trial judge did not permit any evidence of repairs to real estate made by a remainder-man before the death of the life tenant. This allegation of error arises from an off-the-record conference between the trial judge and opposing counsel.

During the course of the trial, James sought to introduce evidence of repairs that he personally paid for that were made on the property occupied by Maud Gaines, the life tenant and mother of James and Cecil Gaines, the remaindermen. The record shows that James attempted to prove those repairs that occurred before the death of his mother. The trial judge stopped the questioning and called both lawyers into his chambers. It was there, James says in his brief, that the judge said there would be no more questioning of repairs made before the death of Maud. There was no objection by James, and the record does not contain the contents of the off-the-record conference between the judge and the counsel. This refusal to permit that evidence is the principal issue on appeal.

This Court cannot consider evidence that is not in the transcript of the proceedings in the trial court. American Benefit Life Insurance Company v. Ussery, 373 So.2d 824 (Ala.1979). Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So.2d 90 (1963).

[1034]*1034A second issue on appeal is Cecil s motion to dismiss the appeal because James’s brief was not filed within 28 days after November 28, 1984, the date shown on the certificate of completion of record on appeal by the trial clerk. Rule 31, A.R. A.P. It is provided by Rule 2, A.R.A.P., that an appeal may be dismissed if appellant’s brief is not filed in accordance with Rule 31. In this case, James filed a pro se brief, and under Rule 2(b), A.R.A.P., we accept his reasons for lateness.

The motion to dismiss the appeal is denied.

The judgment of the trial court is affirmed.

MOTION TO DISMISS DENIED; AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.

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472 So. 2d 1033, 1985 Ala. LEXIS 3919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaines-v-gaines-ala-1985.

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