It is insisted that we were mistaken in supposing that the evidence was taken orally in open court. The record seems clearly to us to indicate that it was so. It recites that the cause came on to be heard in the circuit court on April 3, 1936, before Hon. W. W. Wallace, judge. The court then caused the witnesses to be sworn and put under the rule, and proceeded with their examination. If the court abandoned the hearing, and left it to the reporter, it does not so appear. If he was a mere spectator that is not so recited. It is our understanding of the record that it shows the presence and participation of the presiding judge at the time of the taking of the testimony.
But if we are mistaken in so interpreting the record, it is our opinion upon further consideration that the result reached by the trial judge was correct. The application is therefore overruled.
Application for rehearing overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. *Page 132