I am not in harmony with the holding of the majority in Lunday v. Jones, 85 So. 411,1 and think the result here more clearly demonstrates the error of that decision, which, in my humble judgment, should be now overruled.
In any event, however, chancery rule 75 is but a rule of practice, a compliance with which may be waived by appropriate agreement of counsel. I construe the agreement of counsel entered into in this cause (especially when viewed in connection with the procedure that follows) as intending to embrace all questions of practice relating to this trial, which would include any formal notation of the evidence. So construing the agreement, therefore, I cannot agree to the majority opinion, and consider it most unfortunate that the cause is not determined here upon its merits.
I therefore respectfully dissent.
1 204 Ala. 326.