159 So. 72 | Ala. | 1934
Lead Opinion
The submission in this case was upon motion and merits.
The motion was to strike the bill of exceptions as a violation of rule 32 of circuit and inferior court practice. The earlier decisions are cited in Michie's Code of 1928, p. 1939. The rule has been enforced by the recent decisions of Turner v. Thornton,
This bill of exceptions is a violation of the rule, and is stricken under the terms thereof.
The motion is granted and the bill of exceptions is stricken. No other questions are presented for review as to the record proper, and the judgment is affirmed.
Motion granted; affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
Dissenting Opinion
It is well settled that this court will exercise its discretion in applying rule 33 of Circuit Court Practice, and will strike the bill of exceptions or tax the appellant with costs, in the light of the circumstances and the justice of the case. Woodward Iron Co. v. Herndon, Adm'r,
In my judgment, much of the matter contained in the bill of exceptions was necessary to show the atmosphere of the trial, and this palliates the violation complained of, and the most that should be done is to tax part of the costs of the appeal against the appellant and consider the case on the merits.
Courts are created for the administration of justice, and to my mind there has been a failure of justice in this case.
I therefore respectfully dissent.
Addendum
Upon further consideration of this case on application for rehearing, the court is of the opinion that the application for rehearing should be, and is hereby, overruled.
Application overruled.
All the Justices concur, except BROWN, J., who dissents.
