Harper v. Raisin Fertilizer Co.

42 So. 550, 148 Ala. 360, 1906 Ala. LEXIS 340

• Court: Supreme Court of Alabama
• Decided: November 22, 1906
• Status: Published

Opinion

HARALSON, J.

— The last assignment of error, that the “court below erred in rendering a. personal judgment against appellant, of which he had no notice,” is insisted on in argument, simply on the ground, without more, “because he (R. Harper) had no notice of the motion.” This suggests no more, than the assignment of error itself suggests and can scarcely be said to be an insistence in argument. Moreover, no motion was required. The decree over was within the lis pendens.-Code 1896, § 859; Wells v. Mortgage Co., 123 Ala. 413, 26 South. 301.

Again, the transcript shows, that said Harper liad notice of the execution of the reference by the register. He was present, took part and was examined as a witness in his own behalf.

2. As to appeals from the chancellor’s decree, overruling exceptions to the register’s report, the well-settled rule is, that the appellate court will not reverse, unless the record clearly shows, that the register’s conclusions are erroneous.—Mahone v. Williams, 39 Ala. 203; Warren v. Lawson, 117 Ala. 339, 23 South. 65. The rule requires the chancellor1, and requires us’ to indulge all reasonable presumptions in favor of the register’s decision on questions- of fact, such as the ones we have now under consideration, and not to reverse it unless clearly satisfied it is wrong.—Jones v. White, 112 Ala. 451, 20 South. 527. “The appropriate function of an exception to the register’s report is, to point out distinctly and clearly the error, or matter complained of as error. A mere general objection to the rulings or conclusions of the register, or to the results he may reach in the statement of an account, cannot be entertained.”—Vaughan v. Smith, 69 Ala. 94; Winter v. Banks, 72 Ala. 410.

Again, exceptions to- the register’s report under a reference, not accompanied with proper references to those parts of the evidence relied on to sustain them, as required by the rule of chancery practice, 94, are properly overruled.-State v. McBride, 76 Ala. 52; McQueen v. Whetstone, 127 Ala. 417, 30 South. 548.

“An exception to the report of a master is in the nature of a special demurrer, and the party objecting must put his finger on the error; otherwise, the part not excepted to may be taken as admitted.”-Campbell v. Claflin, 135 Ala. 527, 33 South. 275.

The assignments of error, and the exceptions themselves, do not conform to the rules as thus laid down.

.3. Moreover, there was abundant testimony to support the findings of the register, as to the various items making up the account between J. B. and R. Harper upon the mortgage debt, and also to support his findings as to the various debts claimed thereon, including the credits claimed by Ii. Harper which were disallowed. The evidence of those two persons before the register tends to sustain this view. We will not disturb the decree of the chancellor.

4. Aside from all this, however,- what purports to be the brief of appellants’ counsel filed in the cause, does not conform to rule 10 of Supreme Court practice, and with the possible exception of the second point therein, cannot be íegarded as an insistence in argument. Briefs of counsel should go to all points assigned as error, and assignments of error not discussed in brief will not- be noticed or considered by the court.—A. M. Ry. Co. v. Johnson, 123 Ala. 198, 26 South. 160; Williams v. Spragins, 102 Ala. 424, 15 South. 247; 3 Mayfield’s Dig. p. 133.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.