Opinion
No. 4-8651
Opinion delivered November 29, 1948.
1. APPEAL AND ERROR — INSUFFICIENCY OF ABSTRACT. — Where in appellee's action to foreclose a mortgage on a tract of land against which appellant claimed certain credits, the abstract failed to include either the decree, the pleadings or the testimony on which the decree was based was insufficient to enable the appellate court to determine whether or not the decree of foreclosure was proper. 2. APPEAL AND ERROR. — Where there is no attempt to comply with rule IX in abstracting the record, the appeal will be dismissed.
Appeal from Izard Chancery Court; J. Paul Ward, Chancellor; appeal dismissed.
Northcutt Northcutt, for appellant.
W. G. Wiley, for appellee.
Appellee brought this suit to recover judgment on a note executed to his order by appellant for the entire purchase price of a tract of land, and he prayed the foreclosure of a mortgage on the land given to secure the note.
The execution of the note and mortgage is not denied, but an answer was filed in which appellant claimed credit on seven items totalling $1,501.40, which she alleged "are due the defendant and are supposed to be applied on the note and mortgage set up in the complaint of the plaintiff."
Much testimony was offered upon these items and the court made the general finding that the note had not been paid and that appellant was not entitled to any of the credits claimed. The decree is not abstracted by appellant, nor were any of the pleadings, nor is there any abstract of the testimony upon which the decree was based.
To some extent appellee has supplied the testimony as to the various credits claimed, but there was no attempt to furnish the abstract which appellant should have made, but failed to make. The testimony supplied related to the defenses to the alleged credits. The court expressed the opinion that the testimony was too confused and conflicting to form the basis of a judgment, and that appellant had not shown that she was entitled to any of the credits claimed, and all were disallowed and a decree was rendered awarding judgment on the note and ordering the foreclosure of the mortgage which secured it. Only a careful reading of the voluminous and conflicting testimony, none of which is abstracted by appellant, would disclose whether the court's finding was correct or not. In other words, there has been no substantial compliance with Rule IX and in some respects, no compliance at all.
The appeal must therefore be dismissed for this reason and it is so ordered.