
    103 So.2d 713
    Mrs. Audrey ELLARD v. J. BLACH & SONS.
    6 Div. 252.
    Supreme Court of Alabama.
    May 29, 1958.
    Rehearing Denied June 26, 1958.
    Geo. S. Brown and John J. Smith, Birmingham, for appellant.
    John P. Ansley, R. Foster Etheredge and Spain, Gillon & Young, Birmingham, for appellee.
   LAWSON, Justice.

The appeal in this case is on the record, which discloses the pleadings, written charges given and refused, the oral charge of the court and the verdict and judgment, but no transcript of the evidence and proceedings on the trial. Act No. 97, approved February 9, 1956, Acts of Alabama, 1956 Special Session, Vol. 1, p. 143; 1957 Supplement to the 1940 Code of Alabama, pp. 93 and 94, where the pertinent parts of said 1956 Act are set out as § 827(1), Title 7, Code 1940.

The two assignments of error relate solely to the giving of a written charge at the request of the defendant below, the appellee here. Those assignments cannot be considered in the absence of a transcript of the evidence. West v. Givens, 246 Ala. 395, 20 So.2d 710; Central of Georgia Ry. Co. v. Hinson, 262 Ala. 223, 78 So.2d 286. Such has been the rule in this state for many years. See City of Birmingham v. Chambless, 222 Ala. 249, 132 So. 313; Avery v. Kelley, 242 Ala. 671, 8 So.2d 161; Morris v. Bragan, 195 Ala. 372, 70 So. 717; King v. Scott, 217 Ala. 511, 116 So. 681; Rose v. Magro, 241 Ala. 513, 3 So.2d 64; Anniston Lumber & Mfg. Co v. Hughes, 226 Ala. 654, 148 So. 124; Macertney v. Gwin, 218 Ala. 529, 119 So. 238; Battle v. Wright, 217 Ala. 354, 116 So. 349; Southern Life & Health Ins. Co. v. Williams, 25 Ala.App. 360, 146 So. 624.

However, the appeal is not subject to dismissal because of the absence of the transcript of the evidence from the record. Bentley v. County Commission for Russell County, 264 Ala. 106, 84 So.2d 490; Central of Georgia Ry. Co. v. Hinson, supra.

The motion of appellee to dismiss the appeal is denied. The judgment is affirmed.

Motion denied.

Affirmed.

SIMPSON, MERRILL and COLEMAN, JJ., concur.  