Beatty v. Hobson

133 Ala. 270 | Ala. | 1901

TYSON, J.

Appeal from probate court on the trial of contest of a will by the contestant.

The trial of the cause was by the court, with a jury, at a special term, resulting in a decree entered of date the 18th day of January, 1900, in favor of the proponent.

The decree contains no order for the signing of the bill of exceptions, after the expiration of the ten days allowed by section 465 of the Code. • The bill of exceptions was signed on the 27th day of February, 1900, which was subsequent to the holding of the regular term in February. It is plain, therefore, that the bill of exceptions cannot be looked to for the purpose of reviewing any exceptions reserved upon the trial. — Ala. M. R’y. Co. v. Brown, 129 Ala. 282; 29 So. Rep. 548; Karter v. Peck, 121 Ala. 636; Bank of Dothan v. Wilks, 31 So. Rep. 451.

On the 8th day of February, four days before the convening of the court at it® regular term, and twenty-one days after the trial, the contestant filed his motion for a new trial, assigning errors committed by the court upon the trial, which was regularly continued until the 21st of February, on which day it was overruled. In the order overruling and denying the motion fifteen days were allowed for the preparation and signing of the bill of exceptions, which, as we have shown, was signed on the 27th.

Prior to the enactment of the act of February 16, 1891, now constituting section 434 of the Code, the granting or refusing of a motion for a new trial by the judge of the circuit or city courts in civil causes, was not revisable and could not be assigned for error. — 3 Brick. Dig., 404, § 2. This court has uniformly held that because this statute by its language restricts the revision of motions of this character to civil causes, that the rulings of those courts upon such motions in criminal cases is not reviewable. — Jolly v. The State, 94 Ala. 19 ; Ray v. The State, 126 Ala. 9. Adhering to this rule of construction, the statute, being in abrogation of the rule which has prevailed from the organization of this court, we cannot extend its provision's to the rulings of probate courts upon motions for new trials, since its language restricts the review by us to the ruling of the circuit or city courts upon such motions. '

The bill of exceptions in the record having no purpose to serve, the motion to strike it must be granted, and no error being assigned upon the record proper, the decree of the probate court must be affirmed.