Argo v. Carter

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376 So. 2d 746 (1979)

James Lee ARGO v. James M. CARTER, Acting Director of the Department of Industrial Relations and Avondale Mills.

Civ. 1941.

Court of Civil Appeals of Alabama.

October 31, 1979.

Douglass Culp, Birmingham, for appellant.

No brief for appellees.

BRADLEY, Judge.

James Lee Argo appeals from a judgment holding that he was not entitled to unemployment benefits. The Circuit Court of Jefferson County held a hearing on Argo's appeal from the order of the State Department of Industrial Relations disqualifying him from the receipt of unemployment benefits. At the conclusion of the hearing the trial court affirmed the finding of the Department of Industrial Relations that Argo was not entitled to unemployment benefits.

At the hearing before the trial court a court reporter was present and apparently recorded the testimony; however, there is no transcript of that testimony included in the record on appeal. Appellant states in his brief here that he was financially unable to employ the court reporter to make a transcript of the testimony. We would also note that appellant does not include in the record a Rule 10(d), ARAP, statement of the evidence heard by the trial court.

In his brief to this court the appellant argues that evidence heard by the trial court supports his contention that he was not disqualified from receiving benefits and that the trial court is in error in holding otherwise.

Although we are not unsympathetic with appellant's stated inability to furnish this court with a transcript of the testimony, it is well settled in this state that where it appears that the trial court heard evidence that is not before this court, such evidence will be conclusively presumed to support the findings and judgment of the trial court and will not be disturbed on appeal. English v. English, Ala.Civ.App., 352 So. 2d 454 (1977). As pointed out above, the testimony heard by the trial court is not before this court. Consequently we are of the opinion that we have no alternative but to affirm the trial court's judgment.

Appellee has moved this court to dismiss Argo's appeal, but in view of our decision to affirm the trial court's judgment, we overrule said motion.

*747 MOTION TO DISMISS OVERRULED.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.