
    (102 So. 809)
    CONNER v. STATE ex rel. PERRY, Deputy Solicitor.
    (6 Div. 243.)
    (Supreme Court of Alabama.
    Jan. 15, 1925.)
    1. Clerks of courts .<&wkey;5 — Decree not invalid for want of authority of acting register not duly appointed.
    Under Code 1923, § 2583, and in view of fact that officer whose authority is challenged is not party to suit, decree of circuit court is valid, though acting register, who issued process, noted testimony, approved security for costs, and certified to transcript, was not duly appointed.
    2. Equity &wkey;>427(() — Decree not erroneous for misstatement of pleadings in note of testimony.
    Where note of testimony recites submission of cause on original complaint seeking condemnation of property for illegal manufacture of liquor, but record shows submission on amended complaint, deeree following amended complaint is not erroneous, since in view of Code 1923, p. 930, rule 75 of chancery court, office of note of testimony is not to show pleadings.
    3. Intoxicating liquors «&wkey;252 — Decree condemning property used for manufacture sufficient.
    Decree condemning property on ground of use for making whisky held sufficient when construed with pleadings.
    
      4: Equity <&wkey;356 — Purpose of statute requiring copying, certifying, and filing of oral testimony in open court held served.
    Though Code 1923, § C575, requiring that testimony of witnesses examined orally in open court in equity suits shall be copied, certified, and filed, was not followed, purpose of statute was served where bill of exceptions taken by .defendant as in trial at law purported to contain all of evidence, same being testimony noted by register.
    <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
    Bill in equity by the state of Alabama on the- relation of Ben G. Perry, as Deputy solicitor of the Bessemer division of the Circuit Court of Jefferson county, against F. H. Conner, for condemnation of a house and lot, upon which premises a distillery was being operated or permitted to be operated. Prom a decree of condemnation, respondent appeals.
    Affirmed.
    The decree is as follows:
    “This cause is submitted on pleadings and testimony, as noted by clerk and register, which showed that a still was in full operation, and that F. H. Conner and wife were the only persons present in a 5-room cement block cottage located on lot 1, block 844, according to the map and plat of the Bessemer Land & Improvement Company’s survey of the city of Bessemér, as recorded in the office of the probate judge of Jefferson county, Ala.; and that F. H. Conner told arresting officers that lot I aforesaid was his property at that time.
    “It is ordered and decreed that lot 1 aforesaid was being used for the illegal purpose of making prohibited whisky by F. H. Conner. It is further decreed that said lot be sold as provided by law, together with the house and all appurtenances, account of its illegal use for making whisky; and that the proceeds be distributed as by law provided.”
    Benton & Bently, of Bessemer, for appellant.
    v Demurrer to the bill and summons should have been sustained, no proper summons having been issued’ by one with authority. Const. 1901, § 163; Code 1923, § 6503; Local Acts Jefferson Co. § 5, p. 117. It was error to render decree without note of testimony. Chancery rule 75; Conner v. State, 211 Ala. 325, 100 So. 474. The decree is void. Acts 1915, p. 705.
    Harwell G. Davis, Atty. Gen., for appellee.
    Brief of counsel did not reach Reporter.
   SAYRE, J.

Appellant’s objections to the decree rendered in this cause after its remandinent to the trial court on a former appeal (Conner v. State, 211 Ala. 325, 100 So. 474) are, for the most part, based upon his contention that E. C. Himes, who issued process purporting to bring him into court, noted the testimony, approved the security for costs, issued the citation of appeal, and certifies to the transcript of the record as deputy clerk and register of the Bessemer division of the circuit court of Jefferson, had and has no authority in the premises, for the reason that he has not been appointed by the judge-of that court to the office which he is assuming to fill. But it appears that said Himes is in possession and discharging the duties of the office of register for the Bessemer division of the circuit court with the approval of the judge, and under circumstances indicating the acquiescence of the public, and is at least de facto register of said court. We do not find that he has an appointment as register for the Bessemer division of the circuit court, but he is eligible to such appointment under section 165 of the Constitution, and, at any rate, his right to discharge the duties of the office cannot be questioned in any cause to which he is not a party. 10 Mich. Dig. p. 698, § 17; 29 Cyc. 1389; Code 1923, § 2583.

The note of testimony recites a submission upon the original bill of complaint, answer, and the depositions of witnesses named. But in fact the record shows that the original bill had been amended to cure a misdescription of the property sought to be condemned. Upon this state of the record, appellant insists that the decree condemning the property by its description in the amended bill was error, "it is customary, and not' improper when correctly done, to note the pleadings in the note of submission; but such notation is wholly unnecessary, for the court looks to the record for the pleadings, the only necessary office of the register’s note of submission being to specify the evidence upon which the cause is submitted. Rule 75 of the chancery court, p. 930 of the Code.

The decree is not in the best shape, but when construed with reference to the pleadings, as it must be, it sufficiently shows that the property described in the amended bill as the property of defendant is condemned on the ground that it had been used in violation of the statute. Of course only the interest, right, and title of the defendant named in the bill could be condemned, and that the decree does. It could do no more.

Section 6575 of the Code of 1923 (Act Sept. 22, 1915, p. 705) requires that, when witnesses are examined orally in open court, as was done in this case, the testimony shall be taken down as delivered and transcribed, certified and filed in the cause, and in such case, as well as when the testimony is taken by depositions, a note of it is necessary. Crews v. State, 206 Ala. 101, 89 So. 205, and cases there cited. The statute was not followed in this case, but the transcript shows a bill of exceptions taken by appellant as in the case of a trial at law, and purporting to contain all the evidence, the same being the testimony noted by the register. This was irregular, but the transcript of the record in its present shape suffices to show the evidence upon which the court based its decree, and the purpose of the statute has been served.

The decree is affirmed.

ANDERSON, O- J., and GARDNER and MILLER, JJ., concur.  