Cameron v. North Birmingham Trust & Savings Bank

84 So. 569 | Ala. Ct. App. | 1919

By an agreement on file, whereby it is stipulated that certain corrections shall be made in the record, the first, second, third, and fourth assignments of error are eliminated.

The judgment in the court below was rendered on April 25, 1918, and the indorsement shows the bill of exceptions to have been presented to the presiding judge on July 22, 1918. But by affidavit of the presiding judge, filed in support of a motion by appellee to strike the bill of exceptions, it is made to appear that, while the bill of exceptions was mailed to the presiding judge at his residence, and reached his residence on July 22, 1918, not being at home, the judge did not receive the bill of exceptions until July 25, 1918, more than 90 days after the judgment. It will thus be seen that the question presented by the motion to strike is: Was the mailing of the bill of exceptions to the presiding judge at his home such a presentation as is required by section 3018 of the Code of 1907? That the indorsement of the presiding judge may be overturned by oral testimony and ex parte affidavits has already been decided by the Supreme Court. Buck Creek Lbr. Co. v. Nelson et al., 188 Ala. 243, 66 So. 476; L. N. R. R. v. Malone, 116 Ala. 600, 22 So. 897.

In this case it is made to appear that the presentation did not take place within the 90 days, unless the mailing of the bill of exceptions on the 22d would meet the requirement of the statute. It will be observed that the language of the statute is: "Bills of exceptions may be presented," etc. All of the definitions given of the word "presentation" indicate something more than a mere delivery, or the placing in the legal possession of the presentee of the thing presented. Standard Diet. There must not only be a delivery, but in addition thereto a formal exhibition of the thing presented, so that, with full knowledge, it may be accepted or rejected. This is held to be so in the presentation of accounts against estates, Ellison v. Lindsley, 33 N.J. Eq. 260; also in the service of process, May v. Rice, 108 Mass. 150, 11 Am. Rep. 328; Reg. v. Leominster, 2 B. S. 391.

We think that the formal presentation of bills of exceptions is of equal importance and should come under the same rule. For the above reasons, the motion to strike the bill of exceptions is granted. The bill of exceptions being stricken, the remaining assignments of error cannot be considered.

Motion to strike bill of exceptions granted. Judgment of the trial court is affirmed.

Motion to strike granted.

Judgment affirmed.