Birmingham Railway & Electric Co. v. James, 138 Ala. 594

Birmingham Railway & Electric Co. v. James

138 Ala. 594 | Ala. | 1903

Lead Opinion

DOWDELL, J.

It appears from the record, that a f<;ev the court had sustained a demurrer to the defendant’s 5th plea, a trial was then had, resulting-in a verdict and judgment for the plaintiff, which was afterwards, on motion of the defendant for a new trial, set aside, and the cause then continued to another term. At the subsequent Arm the plaintiff amended his complaint, whereupon the defendant refiled to the complaint as amended, as the record recites, “its pleas heretofore filed to the original complaint.” After this no demurrer was interposed to the pleas, and the cause was tried on issue joined on all of the pleas. From this it appears that the defendant had the benefit of its plea as originally filed, at least, it does not appear to the contrary from the records, and consequently suffered no injury from the ruling on the demurrer in the first instance. The ruling of the court on the demurrer to the 5th pl£a, is the only error assigned on the record proper.

The bill of exceptions was not signed at the term at which the trial was had, nor was there any order of the court made extending the time for signing the same. There was an agreement of- counsel extending the time, and by which the time fixed for the signing of the bill was after the commencement of the next regular term of the court. The time was still further extended, and the bill was then signed within-the extended period, which was after the beginning of said subsequent term of the trial court. This was in violation of rule 30 of practice, and under the authority of Cooley v. United States Saving & Loan Association, 132 Ala 590, the bill cannot be looked to or considered as to matters arising and excep*596lions taken on the trial, forming no part of the record for that purpose. And it follows, that the assignments of error based on matters, which alone can be shown by proper bill of exceptions cannot be considered. The bill of exceptions, however, having been signed during the term at which the motion for a new trial was ruled on, ii might be considered as to such ruling. But the assign ment of error as to the refusal of the court to grant the motion for a new trial, not being insisted on, we decline to consider it.

No error being shown by the record, the judgment will be affirmed.

Rehearing

On Application for Re-hearing.

PER CURIAM.

The agreement of counsel as to the signing of bill of exceptions, shows on its face that the bill was not to be signed in any event until after ruling on motion for a new trial, which motion by the terms of the agreement had been continued to the next term of the court. So it is made clearly to appear, that the time fixed by the agreement for the signing of the bill was subsequent to the commencement of the next succeeding term of the court. The agreement being invalid, the subsequent orders made by the judge, after the adjournment of the court at which the trial was had, extending the time,, were inefficacious. ,4We adhere to the decision in the case of Cooley v. United States Saving & Loan Association, 132 Ala. 590.

Application for re-liearing overruled.