Berggren v. Berggren , 52 Ala. App. 118 ( 1973 )

WRIGHT, Presiding Judge.

This is an appeal from a decree of divorce rendered in the Houston County Court, In Equity, on November 9, 1972. The appellant was defendant in the court below.

Assignment of Error No. 1 is that the trial court erred in failing to grant defendant’s motion for rehearing. Such assignment is not well taken. Equity Rule 62 provides that no appeal will lie from an order on a motion for rehearing unless it modifies the decree.

The remaining assignments of error charge error in the rendering of certain aspects of the decree. The basis for these assignments of error is that the decree in its various aspects relating to award of alimony in gross is not supported by or is contrary to the evidence.

The transcript of the record indicates that the evidence was taken orally before the court. We find no transcript of the evidence filed in the record as provided by Equity Rule 56. There is filed in the cause an instrument entitled a “Bill of Exception.” The contents of such instrument is purported to be “a succinct statement of the evidence taken in behalf of the defendant.” Such instrument is signed by the judge and is certified as being correct. We do not understand the purpose of such instrument and are not informed as to its claimed legal status. So far as we are informed there has never been a bill of exception authorized in courts of equity. Even in courts of law, bills of exception have been abolished except in certain jurisdictions. Title 7, § 827 (1), Code of 1940, Recompiled 1958.

Though the absence of a record of the evidence taken orally before the court, as required by Equity Rule 56, is not complained of by the appellee, we cannot consider the assignments of error under the state of the record.

It has always been the rule that evidence heard orally by the court, but not appearing of record on appeal, is presumed to justify the decision of the court on the issues of fact presented. Gipson v. Hicks, 243 Ala. 617, 11 So.2d 461; Wood v. Wood, 119 Ala. 183, 24 So. 841; Thomas v. Thomas, 246 Ala. 484, 21 So.2d 321.

It was stated in Thomas v. Thomas, supra, as follows: “The holding has been settled, and without exception, that the absence from the record of evidence taken orally before the court, though noted, precludes a review on appeal of the propriety of the trial court’s conclusions thereon.” [citations omitted.] A “succinct statement of the evidence” is not a transcript of the evidence. We cannot review on appeal the conclusions of the trier of the facts unless such facts as heard by the court below are before us. As there is nothing before us for consideration, the decree below must be affirmed.

Affirmed.

BRADLEY and HOLMES, JJ., concur.