WINFIELD LUMBER CO. v. SOUTHERN MFG. CO. et al.

(96 South. 756) WINFIELD LUMBER CO. v. SOUTHERN MFG. CO. et al. (7 Div. 399.) (Supreme Court of Alabama. June 9, 1923.) Appeal anti error <&wkey;>5l5(2) — Decree denying superior lien claimed by intervener not reviewed in absence of testimony. Where the decree directing, sale of property for division denied the superior lien claimed by intervener, it in one aspect denied the relief the intervener sought, and. in the absence of note of testimony, as required by chancery rule 75, a decree which concludes in denying the appealing actor’s right to relief cannot be reversed. Appeal from Circuit Court, Etowah County ; O. A. Steele, Judge. In the cause of Ike Sabel against Nellie G. Sabel a depree having been rendered ordering the sale for division of certain property of the parties, the Winfield Lumber Company, the Southern Manufacturing Company, and others intervene for the purpose of having liens and claims upon the property established and enforced. Erom the decree rendered, denying its claim, the Winfield Lumber Company appeals. Affirmed. Victor Vance, of Gadsden, for appellant. Counsel argue the merits of the case, but in view of the opinion it is unnecessary to set out the bripf. Hood & Murphree, of Gadsden, for appellees. There being no note of submission, it will be assumed on appeal that the pleading and proof justified the decree. [MAJORITY — McOLELLAN, J.] McOLELLAN, J. The appeal is by the Winfield Lumber Company, an intervening, asserted relatively, superior lienor of the proceeds of the sale (under decree) of certain property in Gadsden. The court, in one aspect of the decree, denied the relief the appellant sought. There is no note of testimony as required by chancery rule 75, Civil Code, p. 1551. In the absence of note of testimony, a decree will not be reversed where the decree concludes in denial of the appealing actor’s right to relief. Watson v. Kirkland, 204 Ala. 655, 87 South. 93; Beck v. Burchfield, 205 Ala. 486, 88 South. 417; Saxon v. Parson, 206 Ala. 491, 90 South. 904. Rule 75 is exacting, and is so enforced. Brassell v. Brassell, 205 Ala. 201, 87 South. 347, among others. The decree is affirmed. Affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.