Haralson v. Whitcomb, 200 Ala. 165, 75 So. 913; Manning v. Manning, 203 Ala. 186, 82 So. 436. Appellant was entitled to an opportunity to redeem before sale as ordered by the decree. Boyd v. Dent, 216 Ala. 171, 113 So. 11; Ezzell v. First Nat. Bank, 218 Ala. 462, 119 So. 2. Testimony not noted cannot be considered. Chancery Rule 75; May v. Robinson, 221 Ala. 570, 130 So. 81; Potts v. Court of Commissioners, 203 Ala. 300, 82 So. 550; Brassell v. Brassell, 205 Ala. 201, 87 So. 347; Lunday v. Jones, 204 Ala. 326, 85 So. 411; Crews v. State, 206 Ala. 101, 89 So. 205; Milam-Morgan Co. v. State, 205 Ala. 315, 87 So. 348; Flagg v. Florence Discount Co., 228 Ala. 153, 153 So. 177; Mullen v. First Nat. Bank, 226 Ala. 305, 146 So. 802; Allison Lbr. Co., v. Campbell, 225 Ala. 609, 144 So. 574; Hymes v. State, 209 Ala. 91, 95 So. 383; Carson v. Sleigh, 201 Ala. 373, 78 So. 229; Id., 201 Ala. 86, 77 So. 380; Davidson v. Rice, 201 Ala. 508, 78 So. 862; Kelley v. Chandler, 200 Ala. 215, 75 So. 973; Darling v. Hanlon, 197 Ala. 455, 73 So. 20; Turner v. Turner, 193 Ala. 424, 69 So. 503; Tatum v. Yahn, 130 Ala. 575, 29 So. 201; Harn v. Common Council, 100 Ala. 199, 14 So. 9; Reese v. Barker, 85 Ala. 474, 5 So. 305; Johnson v. Riddle Ellis, 204 Ala. 408, 85 So. 701; Code 1923, ยง 6575. Using the mortgage for the purpose of foreclosing and acquiring a home for appellee was a fraud in the exercise of the power of sale. Castleman v. Knight, 215 Ala. 429, 110 So. 911. Appellant was entitled to an account.
George B. Jones, of Florence, for appellant Paxton. No other testimony than that noted can be considered. Allison L. Co. v. Campbell, 225 Ala. 609, 144 So. 574; Harrod v. State, 225 Ala. 669, 145 So. 137. Lovelace was a necessary party defendant to the cross-bill. Demurrer taking the point of his nonjoinder should have been sustained.
The evidence of the complainant and wife was before a commissioner. Home Ins. Co. v. Shriner, 235 Ala. 65, 177 So. 897; Boswell v. Longshore, 238 Ala. 535, 192 So. 267; Rule 120, Code 1940, T. 7, Appendix, page 1125; State Tax Comm. v. Commercial Realty Co., 236 Ala. 358, 182 So. 31; Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574; Johnston v. Johnston, 229 Ala. 592, 158 So. 528. We find that no note of submission by complainants is contained in the record.
The cause was tried before the chancellor on oral testimony of the witnesses and some exhibits which were offered. There was no pretense of a note of testimony by either complainant or defendants. Rule 75 Chancery Practice was wholly ignored; and appellee stresses the point of a non-compliance with this rule. Our decisions are uniform to the effect that this rule requiring a note of testimony is mandatory, and that testimony not noted cannot be considered. Huguley, Ex'r, v. Huguley, Ala.Sup., 192 So. 52; Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574; State Tax Commission v. Commercial Realty Co., 236 Ala. 358, 182 So. 31; Fischer v. Pope, 229 Ala. 170, 155 So. 579; Home Insurance Co. v. Shriner, 235 Ala. 65, 177 So. 897; Johnston v. Johnston, 229 Ala. 592, 158 So. 528; Jones v. First National Bank, 236 Ala. 606, 184 So. 168. And the rule embraces testimony taken orally before the chancellor. Lunday v. Jones, 204 Ala. 326, 85 So. 411; Brassell v. Brassell, 205 Ala. 201, 87 So. 347.
The rule is mandatory and can not be waived as it affects the court and its procedure. Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574; Mullen v. First Nat. Bank of Montgomery, 226 Ala. 305, 146 So. 802; Commercial Inv. Trust, Inc., v. East, 217 Ala. 626, 117 So. 160. Affirmed.
We cannot, therefore, on this appeal, consider any testimony, oral or documentary, which was given or offered by the intervenor. Allison Lumber Company v. Campbell, 225 Ala. 609, 144 So. 574; Mullen v. First National Bank, 226 Ala. 305, 146 So. 802; Simpson v. James R. Crowe Post, No. 27, American Legion, 230 Ala. 487, 161 So. 705; Johnston v. Johnston, 229 Ala. 592, 158 So. 528; Turner v. Turner, 193 Ala. 424, 69 So. 503; Harrod v. State, 225 Ala. 669, 145 So. 137; Dreyer v. Vaughn, 226 Ala. 38, 145 So. 446. There is then no evidence before us, which we can consider, tending to support the appellant's petition. It stands, therefore, without proof in support of it. The State's evidence makes out a prima facie case, authorizing and justifying the court's decree of condemnation, and sale of the car, and there being no evidence to the contrary, the decree is due to be, and is, affirmed.
There is no denial in the petition for intervention or otherwise of the allegations of the bill, which make a prima facie case for condemnation, and the only evidence noted, as required by rule 75 of Chancery Practice, was the depositions of the witnesses Whigham and Sparks, examined as witnesses in behalf of the complainant. The rule is mandatory and testimony not noted can not be considered on appeal. Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574; First Nat. Bank v. Williams, 206 Ala. 394, 90 So. 340; Harrod v. State, 225 Ala. 669, 145 So. 137. The rule is applicable to testimony given ore tenus.
Code, 1923, ยง 6548; Winter v. City Council of Montgomery, 83 Ala. 589, 3 So. 235; Rule 75 of Chancery Practice, Code, 1923, p. 930. This rule is mandatory and testimony not noted can not be considered. Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574; Johnston v. Johnston, 229 Ala. 592, 594, 158 So. 528. While the unambiguous recitals of a judgment entry are conclusive and controlling as to matters which must appear therein, yet the recitals in the judgment or minutes can not convert a suit in equity to an action or proceeding at law.
Chancery Rule 75 is mandatory, and, unless testimony is noted as required, neither the chancellor nor the appellate court can consider such testimony. Reese v. Barker, 85 Ala. 474, 5 So. 305; Tatum v. Yahn, 130 Ala. 575, 29 So. 201; Sellers v. Farmer, 147 Ala. 446, 41 So. 291; Turner v. Turner, 193 Ala. 424, 69 So. 503; Potts v. Commissioners' Court, 203 Ala. 300, 82 So. 550; Lunday v. Jones, 204 Ala. 326, 85 So. 411; In re 500 Sacks of Feed, 205 Ala. 315, 87 So. 348; Brassell v. Brassell, 205 Ala. 201, 89 So. 347; Crews v. State, 206 Ala. 101, 89 So. 205; White v. White, 207 Ala. 533, 93 So. 457; Jones v. Moore, 215 Ala. 579, 112 So. 207; Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574, 575; Harrod v. State, 225 Ala. 669, 145 So. 137. Where a decree has been entered granting relief on testimony not offered and noted as required by Rule 75, it will be reversed on appeal. Reese v. Barker, supra; Potts v. Commissioners' Court, supra; Lunday v. Jones, supra; In re 500 Sacks of Feed, supra; Brassell v. Brassell, supra; Crews v. State, supra. And this although the testimony is taken orally in open court rather than by deposition.
" If the decree, within its four corners, furnished any evidence of the fact that the court had considered the assessments in reaching its conclusion, we would be forced to reverse the decree, for consideration of such evidence would be in direct contravention of rule 75 of Chancery Practice, which forbids the consideration of any evidence not noted; and the fact that the evidence was not noted by inadvertence cannot change the effect of the rule. This rule, as repeatedly declared by this court, is mandatory in terms, and must be complied with. Allison Lumber Co. v. Campbell, 225 Ala. 609, 144 So. 574; Brassell v. Brassell, 205 Ala. 201, 87 So. 347; White v. White, 207 Ala. 533, 93 So. 457; Carson v. Sleigh, 201 Ala. 373, 78 So. 229; Tatum v. Yahn et al., 130 Ala. 575, 29 So. 201; Sellers v. Farmer, 147 Ala. 446, 41 So. 291; Turner v. Turner, 193 Ala. 424, 69 So. 503; Harn v. Common Council of Dadeville, 100 Ala. 199, 14 So. 9. The fact that testimony offered was not noted by inadvertence furnishes no reason or excuse for overriding and setting aside this positive and mandatory requirement.