Opinion
3 Div. 839.
December 20, 1928.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Ball Ball, of Montgomery, for appellant.
No note of testimony by the intervener was necessary. Town of Samson v. Chicago Title Trust Co., 208 Ala. 18, 93 So. 833.
Rushton, Crenshaw Rushton, of Montgomery, for appellees.
The burden of proof being upon intervener to sustain the allegations of fact contained in his petition, the failure to note testimony under rule 75 is fatal to intervener. Potts v. Com'rs Court, 203 Ala. 300, 82 So. 550; Jones v. Moore, 215 Ala. 579, 112 So. 207.
In this case a bill in equity was filed to foreclose a mortgage on personal property. After a decree of foreclosure, ordering a sale of the property, appellant filed a petition of intervention claiming an interest in the property and proceeds of sale. This claim was based upon facts alleged in the petition. The allegations of the petition were denied by answer. In this state of the pleading, the burden was on appellant, as intervener, to prove those allegations. The evidence was taken orally in the presence of the court, and certified by the court reporter. There was no note of testimony. This court has held a note of testimony necessary under these circumstances. Lunday v. Jones, 204 Ala. 326, 85 So. 411; Brassell v. Brassell, 205 Ala. 201, 87 So. 347; Blackburn v. Moore, 206 Ala. 335, 89 So. 745; Crews v. State, 206 Ala. 101, 89 So. 205.
Adhering to that rule, we have here a situation where the intervener has no evidence to sustain the allegations of his petition. Under such circumstances, the court was without error in denying appellant relief. We must therefore affirm the decree.
Affirmed.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.