Williams v. Clark

82 So. 2d 295, 263 Ala. 228, 1955 Ala. LEXIS 605

Opinion

SIMPSON, Justice.

This appeal comes to us from the Circuit Court of Chambers County, in Equity, wherein that court settled a boundary line dispute between coterminous owners in favor of the appellee. The record is incomplete in that it does not contain the testimony of witnesses heard by the judge in open court and relied upon by him in his final decree.

Where no testimony is contained in the record, a decree which recites that it was granted on the pleadings, proofs, and testimony of witnesses will not be disturbed on appeal. Collins v. Loval, 56 Ala. 403. Further, it will be presumed that the evidence was sufficient to sustain the verdict, finding, judgment or decree where all the evidence is not in the record. — State v. Donaldson, 209 Ala. 400, 96 So. 617; Mooneyham v. Herring, 210 Ala. 168, 97 So. 638; 2 Ala.Dig., Appeal and Error, «=» 907(4).

Finally, it will be conclusively presumed on appeal that evidence omitted from the record but heard by the court would sustain the judgment. Broughton v. Broughton, 17 Ala.App. 255, 84 So. 635.

Affirmed.

LAWSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur.