53 So. 823 | Ala. | 1910
Lead Opinion
Motion, by appellee, to strike bill of exceptions on tbe ground that it was not “presented” to tbe presiding judge within the period provided by Code 1907, § 3019. That statute, in the presently important particulars, reads: “Bills of exceptions may be presented at any time within ninety days from the day on which the judgment is entered and not afterwards. * * * 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.” Construing and applying this statute in King v. Hill & Shafer Co., 163 Ala. 422, 51 South. 15, where it affirmatively appeared that the bill was not “presented” within the period required by the statute, it was ruled that “the judge had no right to receive it after the time for presenting had expired.” It is evident from the express terms of the statute that two major acts are required of-the proposed appellant and of the judge, respectively, to perfect a bill of exceptions, viz.: Presentation during ninety days, and not afterwards, from the entry of the judgment, by proposed appellant, .and, signing by the judge within 90 days after presentation. — Smith v. State, 166 Ala. 24, 52 South. 396.
Under older statutes, in which however, presentation was not a factor of the consequence the present statute makes it, it was regarded as long settled, and never doubted, that the bill must be “perfect within itself,” and that, where signed by the judge as a bill of exceptions, extrinsic evidence was not receivable to show compliance with the statutory requirement as respected time of signing. — Stearn v. Lehman, 169 Ala., supra, 2 South. 708; Union India Rubber Co. v. Mitchell, 37 Ala. 314; Bryant v. State, 36 Ala. 270; Maddox v. Broyles, 42 Ala. 436; Morris v. Brannen, 103 Ala. 602, 15 South. 865; Chapman v. Holding, 54 Ala. 61. Stearn v. Lehman,
In Stearn v. Lehman, supra, the bill was silent as to when it was signed by the trial judge, and a certificate of that officer was offered to show “that he signed this bill of exceptions within the time” fixed by order of court for that purpose. The court said: “We cannot look to this certificate for the purpose of ascertaining when the judge signed the bill. A bill of exceptions is regarded as a part of the record, in every cause, and ‘must be perfect within itself.’ It cannot, therefore, as we have often held, when complete, be supplemented or corrected by the aid of extraneous evidence, oral or otherwise, which does not form a part of such record. It should have appeared on the face of the record that the bill was signed within the requisite time prescribed by the order of the court.”
The point is made, in brief for movant to strike this bill, that the affidavit (the substantive features of which the reporter will set out) submitted to show compliance with the statutory requirment for 'presentation cannot be considered on the inquiry. In other words, that presentation vel non, and when that was effected, must be determined alone from the bill (signed by the trial judge). We see no escape from the result of the apt analogy afforded by the ruling in Stearn v. Lehman, supra, and of those decisions on which it rests, some of which are cited before.
Our present statute renders the date of presentation of vital importance in the perfection of a bill of exceptions. In the first place, the period within which the judge must sign the proposed bill, and not afterwards,
If the date of presentation were left without memorial, it is apparent that the inquiry of date of presentation might turn upon expressions of mere memory, and Thereby, in consequence, control by that fickle means the further inquiry, upon occasion, of performance vel non of duty, under this statute, by the trial judge in respect of his signing a bill.
The effect of such a condition might become relatively more important and of greater consequence on a motion to establish a bill, or in proceedings of the grave nature possible in virtue of Code, § 3021; for in neither event could the failure, as distinguished from a positive refusal, to sign even a time bill, become a basis for the eslab
The purported bill, in this instance, is without indorsement of presentation at any time. It was signed more than 90 days after the entry of the judgment. The affidavit of appellant’s attorney cannot be considered to determine when, if so, presentation was made. Accordingly the motion to strike must prevail.
“Not guilty” is the only appropriate plea in ejectment; and under it any matter operating a bar to the ac-lion is admissible in evidence. — Etowah Min. Co. v. Carlisle, 127 Ala. 663, 29 South. 7, among others.
The judgment is affirmed.
Affirmed.
Rehearing
On Rehearing.
On June 14, 1910, this cause was submitted on motion to strike the bill of exceptions, as before stated, and on the merits. A few days after November 10, 1910, several months after the indicated submission of the cause, the appellant forwarded to the court an affidavit of Judge Lackland, the presiding judge, wherein it was, in effect stated that the original bill of exceptions, filed in the circuit clerk’s office, bore dates, seasonably indorsed by him, indicative of, if not showing, the due presentation of the bill by the appellant.
The transcript certified to this court by the circuit clerk contained no such dates or writings as the affidavit mentioned referred to. Hence the effect of the affidavit was to show that the transcript so certified to this court Avas incorrect. The affidavit cannot be now considered. Evidence cannot be taken after submission, unless the submission is set aside. Such has not been done nor prayed.
Without objection of any kind, appellant suffered the submission of the cause on the motion to strike the bill ■ — a motion that, as appears, immediately involved and bore notice of the very matter to which the affidavit of Judge Lackland is addressed. Appellant should then have sought, in proper manner, the certification to this court of a correct transcript.
The rehearing must be denied.