Jones v. White

112 Ala. 449

Opinion

McOLELLAN, J.

It was clearly within the discretion of the chancellor to set aside the submission of the cause entered on October 25, 1894, for final decree on report of the register and exceptions to be thereafter interposed thereto, notwithstanding there was a written agreement of counsel for such submission, the order setting it aside being made at the same term, and, indeed, on the same day, of the submission. The chancellor may have had very good reasons for this course which would not appear here — for instance, that the written agreement was made, as it appears on its face to have been made, at Fayette, but that after the submission at Jasper the parties consented to its being set aside and to another reference, because no testimony had been adduced before the register by one of the parties; and these are stated in the counter abstract to have been the facts, though, as they do not appear in the transcript, we hypothesize them in this connection merely as an illustration of the necessity for a large discretion on the part of the chancellor in matters of this kind.

The other exceptions to the second report of the register are hardly stated with the clearness and particularity required by the rule in that behalf. — Code of 1886, p. 827, Rule 93 ; Mahone v. Williams, 39 Ala. 202, 221; Mooney v. Walter, 69 Ala. 75.

But we have examined the evidence upon which the register formulated his report; and, to say the least, we cannot affirm that the chancellor erred in overruling the exceptions and confirming the report. The evidence •before the register, consisting for the most part of the oral testimony of witnesses, and being presented to the chancellor and here in written form, the rule laid down in Woodrow v. Hawving, 105 Ala. 240, and also the general rule to' be observed in reviewing findings of fact by the register on reference, Mahone v. Williams, supra, required the chancellor and require us to indulge all reasonable presumptions in favor of the register's decision upon questions of fact, such as those now under consideration, and not to reverse it unless clearly satisfied that it is wrong. And certainly the application of this rule in the present case must result in approval of the register’s findings and the chancellor’s confirmation of his report.

This conclusion would be reached if the deposition of White taken on written interrogatories were not and had not been in the case. So that appellant can take noth ing by bis exception to the use of that deposition before tbe register.

Affirmed.