Edmondson, et al. v. McGinnis

Edmondson, et al. v. McGinnis. Bill to Atate a Private 'Nuisance. (Decided June 18, 1908. 47 South. 62.) 1. Appeal and Error; Record; Matters Presented. — Where the evidence adduced before a jury is not contained in the record this court will not review the correctness of a decree entered by the chancellor in accordance with the verdict of the jury, although the submissions on the part of the complainant was upon the original bill and the verdict, and on the part of the respondent on the answers and testimony of the following witnesses before the jury; the cause having been submitted by agreement of parties to a jury on the issue of facts therein. 2. Same. — Where the evidence adduced before the jury is not con tained in the record this court will not on appeal consider the insistence that there was a joint owner of the mill who was not joined as a respondent, the action being for the abatement of a nuisance in the erection of a mill dam, and the decree being based upon the verdict of the jury on submission to them of the issues of fact. Appeal from Anniston City Court. Heard before Hon. Ti-xomas W. Coleman, Jr. Bill by Martin L. McGinnis against W. J. Edmondson and others to abate a nuisance consisting of the overflow of land caused by the raising of a mill dam. There was a decree for complainants and respondent appeals. Affirmed. Matthews & Matthews, and E. H. Hanna, for appellant. Leyden was a necessary party to a decree affecting Ms property rights. — Lawson v. Ala. Warehouse Go., 78 Ala. 289; Boyle v. Williams, 72 Ala. 351; Bibb v. Hawley, 59 Ala. 403; McMalcm v. McMalcm, 18 Ala. 576; State Mut. v. Andrews, 122 Ala. 598; Marshall v. Shiff, 130 Ala. 545; 16 Oyc. 189. This question may be properly raised for the first time in this court. — Prout v. Hogue, 57 Ala. 28; McMalcm v. McMalcm, supra; Woodward v. Wood, 19 Ala. 213; Lawson v. Ala. Warehouse Go., supra; 16 Oyc. 205. Tate & Walker, for appellee. Tbe decree is based upon tbe verdict of tbe jury and tbe facts before tbe jury are not in tbe record, therefore, this court cannot say that tbe decree was erroneous. — Hosed v. Talbert, 65 Ala. 173; Alexander v. Alexander, 71 Ala. 295; Toon v. Firniey, 73 Ala. 343; M. & E. By. Go. v. Cobb, 73 Ala. 396; Webb v. Ballard, 97 Ala. 384. [MAJORITY — McCLELLAN, J.] McCLELLAN, J. McGinnis presented this bill against Edmondson, Sutley, and Puckett to abate a nuisance created by tbe alleged wrongful elevation of an old mill dam, in consequence of wbicb complainant’s lands were overflowed. From tbe joint and several answers of tbe respondents it appears that one Leyden was a joint owner, with Edmondson, of tbe mill property, including tbe dam. Tbe orders and decree of the court below show that by agreement of tbe parties tbe issues of fact raised by tbe pleadings were submitted to a jury, and that tbe finding of tbe jury, after a full bearing upon testimony introduced by both parties, was that tbe dam’s crest should be lowered 10 inches. Tbe decree granted relief in consonance with tbe finding by tbe jury. Tbe testimony presented to tbe jury does not appear in tbe transcript. Tbe testimony or matter upon which tbe case was submitted for decree embraced, for tbe complainant, tbe original bill and tbe verdict of tbe jury, and, for tbe respondents, tbe answers and tbe “testimony of tbe following Avitnesses before tbe jury,” naming a number of them. It is perfectly clear that tbe decree appealed from cannot be pronounced erroneous in any respect, independent of the presumption of correctness always indulged to support an adjudication brought up for review by appeal, in tbe absence from tbe record of tbe testimony upon which tbe lower court rested its conclusion and decree; and, so far as the insistence that Leyden is an indispensable party is concerned, we will • presume, to sustain the decree, that the testimony presented was conclusive, on the hearing below, that Leyden had no interest of any character in the subject-matter of the litigation. The decree is affirmed. Affirmed. Tyson, C. J., and Simpson and Denson, JJ., concur.