Harris v. Alston, 116 So. 116

Harris v. Alston

116 So. 116 | Ala. | 1928

The bill of exceptions was presented to the presiding judge of the Court of Appeals, who approved and established same, supposedly acting under section 6436 of the Code of 1923. Said section authorizes *415 the establishment of a bill of exceptions by a justice of the Supreme Court or a judge of the Court of Appeals when the trial judge dies, resigns, is removed from office, or from sickness or absence from the state or county cannot or is unable to accept a presentation. If, as in this case, the trial judge is accessible and the bill is in fact presented to him and he refuses or fails to approve the same, the appellant must proceed to establish the same in the Appellate Court as provided by section 6435 of the Code. It was expressly held in the case of Sovereign Camp, W. O. W., v. Ward, 200 Ala. 19,75 So. 331, that the act of 1915 (page 816), now codified as a part of section 6436, did not change or alter section 6435, that there was a field of operation for both sections, and that in cases where the trial judge failed or refused to approve the bill of exceptions because he did not deem it correct, it must be established in the Appellate Court under section 6435 and not before a justice or judge of the Appellate Court. The record in this case shows that the bill of exceptions was presented or turned over to Judge Foster, the trial judge, in due time, and he declined to approve same because he did not deem it correct. Whether certain changes or corrections were or were not made at the instance of the appellee's counsel before the bill was established by the presiding judge of the Court of Appeals matters not, as the record shows that said counsel did appear and objected and excepted to the establishment of said bill of exceptions. Moreover, it is at least questionable if this court should not strike the same mero motu because not established or approved as authorized by law, as section 6434 forbids striking same, except upon motion only when the same was not presented or signed within time, and does not apply to one not approved by the proper authority. The motion to strike the bill of exceptions is sustained, and, as there is no assignment of error based upon any ruling disclosed in the record proper, the judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and BOULDIN, JJ., concur.