Thompson v. McQuagge

464 So. 2d 105 (1985)

Paul G. THOMPSON v. Dennis McQUAGGE, et al.

Civ. 4594.

Court of Civil Appeals of Alabama.

January 9, 1985.

*106 Elno A. Smith, Jr., Montgomery, for appellant.

Sarah B. Mooneyham and A. Lee Miller, Montgomery, for appellees.

EDWARD N. SCRUGGS, Retired Circuit Judge.

Mr. Thompson brought this action to recover the possession of a pickup truck.

The trial court heard part of the evidence upon the merits of the case on September 22, 1983. While the record is not as clear as desirable as to all subsequent events, it can be reasonably inferred therefrom that the trial was rescheduled for October 7, 1983, that Mr. Thompson failed to appear in court on that date, that his attorney made a motion to continue the case, and that opposing counsel moved that Mr. Thompson's case be dismissed for want of prosecution. The motions were heard on April 23, 1984, when the trial court dismissed with prejudice all matters in the case after "having considered testimony and evidence as presented on pleadings and motions, both written and oral." Mr. Thompson duly appealed and contends that the trial court erred in dismissing his case.

The dismissal of a civil action for want of prosecution because of the plaintiff's failure to appear at a trial falls within the judicial discretion of the trial court and will not be reversed upon an appeal except for an abusive use of that discretionary power. Owens v. Owens, 435 So. 2d 1316 (Ala.Civ.App.1983); Alabama Rules of Civil Procedure, Rule 41(b). We find no such abuse here.

Additionally, according to the recital contained in the final judgment, it appears that oral testimony which had been presented upon the pleadings and motions was considered by the trial court in rendering its final judgment. While the evidence which was heard on September 22, 1983 appears in the record, no oral testimony "as presented on pleadings and motions" is contained in the record on appeal. Since that information is not before us, we are required to presume that the missing evidence was adequate to sustain the final judgment. Yates v. Yates, 428 So. 2d 105 (Ala.Civ.App.1983).

The judgment in this case is affirmed.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.