62 Ala. 376 | Ala. | 1878
“Either of the parties in any civil case, during the trial of the cause, may reserve, by bill of exceptions, any charge, opinion, or decision of the court, touching the cause of action, and which would not otherwise appear of record.” — Code of 1876, § 3107. “No bill of exceptions can be signed after the adjournment of the court during which the exception was taken, unless by consent or agreement of counsel in writing, except in such cases as is otherwise provided.”- — lb. § 3113. Bills of exceptions were unknown to the common law of England. They had their origin in Statute Westm. 2— 13 Edw. 1, ch. 31. “The bill of exceptions, (under their practice,) must be tendered at the trial; for if the party then acquiesce, he waives it, and shall not resort back to his exception, after a verdict against him; when, perhaps, if he had stood upon his exception, the other party had more evidence, and need not have put the cause on that point. The statute, indeed, appoints no time; but the nature and reason of the thing require that the exception should be reduced to writing, when taken and disallowed, like a special verdict, or demurrer to evidence; not that it need be drawn up in form, but the substance must be reduced to writing while the thing is transacting, because it is to become a record. * * * When the bill of exceptions is sealed, the truth of the facts contained in it can not after-wards be disputed.” — Tidd’s Pr. 863-4; 2 Bouv. Bacon’s Abv. 112. In the early days of our judicial history, a practice grew up of noting or remembering the exception when taken, and of writing it out, giving it form and body, and having it sealed by the presiding judge, afterwards ; sometimes days,
Bills of exceptions, when signed by the presiding judge within the time prescribed by law, become a part of the
Under our system it frequently happens, and without fault or cause of complaint, that one circuit judge holds a part of a term, and another completes it. And under our Constitution, as now framed, Art. 6, § 18, some person other than the judge, “ practicing in the court, and learned in the law,” may be agreed on or appointed to preside in the trial of a cause in which the presiding judge is incompetent to sit. In such case, the commissioned judge holding the court, temporarily vacates the seat, while the special judge hears, decides and renders judgment in the particular cause. That case disposed of, the special judge leaves the bench and the presiding judge proper resumes the seat, and continues with the business of the court. It might happen, and no doubt does, that in courts having heavy dockets, more than one, nay, several special judges, will be agreed on by the several litigants, to hear and decide the different causes in which the judge, by reason of relationship, interest, or prior connection as counsel, is incompetent to preside. In such cases it would work injurious delay, if not an intolerable grievance, if each successive judge were required to remain the occupant of. the bench, and thus suspend all other business until
We think we may safely affirm that prior to the statute of 1844, a practice had grown up in this State of granting and executing bills of exceptions, either during the term, or after the adjournment of the court at which the cause was tried, and either in the county in which the trial was held or out of it. And bills of exceptions so signed and sealed were never rejected or suppressed on that account. We think, too, that this practice, although liable to abuse in negligent or dilatory administrations, is sanctioned alike by authority and reason. The jurisdiction of the circuit judges is coextensive with the State. They have the same official authority and power in one county as in another. Signing a bill of exceptions does not require the machinery of a court. It is the act of the judge, and it would seem that his sense of duty and his official restraints, ought to be and are as binding in one part of the State as in another. The act of 1844, followed up by the sections of the different Codes, referred to above, has wrought one, and- only one, change in this practice ; that of the time within which the bill may be signed. So far as we are informed, this was the only abuse the legislature proposed to remedy. They said nothing about place. Only the judge who presided at the trial could know what exceptions were reserved, and he alone could certify them. Another judge, although presiding during a part of the same term, could have no knowledge, and therefore could have no jurisdiction in the premises. “No bill of exceptions can be signed after the adjournment of the court during
Writ of mandamus denied.