Baker v. Central of Georgia Railway Co.

51 So. 796 | Ala. | 1910

MAYFIELD, J.

— The bill of exceptions in this case must, be stricken on the appellee’s motion. It is not made to appear when the bill of exceptions was signed, nor that it was signed within 90 days from the time it was presented to the trial judge. This much is necessary, to withstand the motion of appellee to strike. The statutes regulating the time and mode of presenting and signing bills of exceptions are as follows: “When Bill Signed. — Bills of exceptions may be presented at any time within 90 days from the day on which the judgment is entered, and not afterwards; and all general, local, or special laws or rules of court in conflict with this section are repealed, abrogated, and annulled. The judge must indorse thereon and as a part of the bill, the true date of presenting, and the bill of exceptions must, if correct, be signed by him within ninety days thereafter.” — Code, § 3019.

The bill appears to have been presented within the time required. The judgment was entered on the 11th day of. August, 1908; and the bill was presented to the judge on the 28th day of August, 190S — only 14 days .after the rendition of the judgment; but it does not appear when it was signed. It is as necessary that it should appear when it was signed as when it was presented. If it was made to appear, by the indorsement of the judge or otherwise, that it was signed within 90 days from presentation, or within the time prescribed by law, it would be sufficient; but this does not appear by the indorsement or otherwise. The burden is on the appellant to show that his bill was signed within the time required by law. There is no presumption, in the absence of proof, that it was so signed.

Before the adoption of the present Code a bill would be stricken, on motion of appellee or by the court ex mero motu, unless it appeared that the bill was signed within the time required by law. The statute now provides that the bill may be stricken only on appellee’s motion. The statute is as follows: “Striking Bills of Exceptions, and Declining to Consider Them Because Not Signed Within Time Required. — The Supreme or appellate court may strike a bill of exceptions from the record or file because not signed within the time required by law, but shall not do so ex mero motu, but only on motion of a party to the record or his attorney.”— Code, § 3020. This statute does not change the rule as to the necessity of its being made to appear that the bill was signed within the time required by law, nor change the rules as to the presumptions or burden of proof in the matter, but merely provides that the bill shall not be stricken, by the court ex mero motu.

The order of indorsement and signing of the bill of exceptions is as follows: “And now on the 28th day of August, the plaintiff presents this his bill of exceptions to Hon. H. A. Pearce, judge of the Twelfth judicial circuit of Alabama, for approval, and asks that the same be signed and approved by him as required by law. (Signed) H. A. Pearce, Judge of the Twelfth Circuit. Filed with me in person this August 28, 1908. (Signed) H. A. Pearce, Judge of the Twelfth Circuit.” There is nothing here to show when the judge approved or signed the bill, but only when it was presented or tendered. It was open for either party to show when the bill of exceptions was actually signed; but the burden is on appellant to show that it was signed within the time authorized, in order to withstand appellee’s motion to strike. If the indorsements on, or recitals in, the bill showed that it was signed within time, this would be sufficient. in the absence of other proof; bnt there is absolutely no evidence that the bill was signed within 90 days after it was presented. On this state of the record, the bill must be stricken, under a long and unbroken line of decisions. — Wood v. Brown, 8 Ala. 563; Kitchen v. Moye, 17 Ala. 143; Haden v. Brown, 22 Ala. 572; Markland v. Albes, 81 Ala. 433, 2 South. 123; Bryant v. State, 36 Ala. 270; Union Co. v. Mitchell, 37 Ala. 314; Bass v. Glasscock, 86 Ala. 244, 6 South. 430; Ladd’s Case, 92 Ala. 58, 9 South. 401; Rosson v. State, 92 Ala. 76, 9 South. 357; Cooley v. U. S., etc., Ass’n, 132 Ala. 590, 31 South. 521; Driver v. King, 145 Ala. 585, 40 South. 315; Carroll v. Warren, 142 Ala. 397, 37 South. 687.

This being an appeal- from a “nonsuit with a bill of exceptions,” which is specifically authorized in certain cases, and the bill being stricken, there is nothing left for us to review. The record does not show that the nonsuit was taken on account of the adverse ruling on the demurrer which is shown by the record proper. And the judgment appealed from must be affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.