Millican v. Cantrell

378 So. 2d 737, 1979 Ala. LEXIS 3310

• Court: Supreme Court of Alabama
• Decided: December 21, 1979
• Docket: 78-742
• Status: Published

Opinion

FAULKNER, Justice.

Cantrell filed a complaint to sell land, and distribute the proceeds of the sale among the owners — each of whom owned an undivided one-eighth interest. The court ordered the sale after hearing the evidence ore tenus from the complainant that the land could not be equitably partitioned in kind. The respondents offered no evidence.

Millican and Byerley appeal, alleging that there was insufficient evidence to support the court’s decree.

We affirm the trial court under the ore tenus rule.

This is a frivolous appeal and one which this Court will not tolerate.

The appellants offered no evidence at the trial, made no motions before the hearing, during the hearing, or after the decree to put the trial court in error. In fact they did nothing to warrant this Court’s attention. Moreover, five of the respondents admitted by answer that the property should be sold — default judgments were taken against two of them.

Under Rule 38 ARAP damages are awarded to the appellee and against appellants for costs in double the amount.

The decree of the trial court is affirmed.

AFFIRMED.

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