44 Ala. 276 | Ala. | 1870
This is an appeal from a decree of the probate court, rendered on the final settlement of an administrator’s accounts, and must be tried on a bill of exceptions, unless the error complained of appears upon the record. — Rev. Code, §§ 2247, 2250; Bartee and Wife v. James, 33 Ala. 34.
The errors alleged are certain credits allowed to the administrator, but the objections to them are founded on facts stated in a writing purporting to be a bill of exceptions, but no where else apparent on the record. This professed bill of exceptions is not signed by the judge, nor dated.
The law is imperative, that the bill of exceptions must be signed during the term of the court at which they are taken, or within ten days thereafter, by consent of counsel, in writing. — Rev. Code, 2760. This court has repeatedly decided that this must affirmatively appear from the record to have been done, or it will be rejected.— Union India Rubber Co. v. Mitchell, 37 Ala. 314; Haden v. Brown, 22 Ala. 572.
The certificate of the probate judge reciting that the transcript contains the bill of exceptions, though made by the officer whose signature was required, can not be construed as a signing of the bill, or as an appearance from the record that it was signed during the term, especially as it was made several months after the close of the term.
The judgment is affirmed.