112 So. 305 | Ala. | 1927
The appeal is from the original judgment, and not the ruling on the motion for a new trial. The trial was had on August 11, 1926, and motion for a new trial made on August 24, 1926; heard and overruled on August 27, 1926. The bill of exceptions was presented and signed by the trial judge on November 19, 1926, and was filed with the clerk on December 21, 1926.
It is provided by statute that either party may, by bill of exceptions, reserve for review the rulings touching the matter in controversy which would not otherwise appear of record, "such bill to be presented to the judge within ninety days after the entry of the decree or judgment" (section 6122, Code of 1923); and that "bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment is entered, and not afterwards," etc. (section 6433, Code of 1923). Section 3019 of the Code of 1907 was amended by the addition of the provision:
"Presentation of the bill of exceptions within ninety days after the granting or refusing of a motion for a new trial shall be sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial,"
— and became section 6433 of the Code of 1923. That statute was of force and effect *695
by virtue of the Governor's proclamation of date of August 17, 1924. The changes in the statutes were adverted to in U.S. Cast I. P. F. Co. v. Williams,
The appellate court may, on motion of a party to the record, or his attorney, strike a bill of exceptions from the record because it is not presented or signed within the time required by law. Section 6434, Code of 1923; Ettore v. State,
The facts of McMillon v. Skelton,
The trial court committed no reversible error in permitting the question and answer by defendant:
"Q. Did you authorize anybody to put that due date in there? A. I did not."
The question was by defendant, the objection by "plaintiff" on grounds stated, and it is recited in the bill of exceptions that "defendant" moved to exclude the answer of the witness on the same grounds interposed to the question. The answer was a denial of the statement of fact by witness Brock as to the preparation and delivery of the notes declared on in the complaint. There was no reversible error in this ruling, as the statute did not apply to these notes, not being negotiable, and the amount and time of payment being uncertain until the sale of the cotton, and rebutted any prima facie, authority to fill in the blank of due date if the statute applied. Section 9042, Code.
The fact that Arnold and McCall denied receipt of the letter of January 27, 1924, from Jordan, did not render charge 3 erroneous. There was a tendency of plaintiff's evidence that afforded a reasonable inference that the same was duly transmitted by United States mails to Arnold Co., and was not returned to Jordan as per return card printed on the envelope. The fact that the cotton was not sold and the denial of receipt of the letter tended to explain Jordan's margin notes sent plaintiff through Brock. Under such phase of the evidence, there was not an acquiescence, or ratification, with and after a full knowledge of the facts of Arnold's failure to sell the cotton at 34 cents per pound. There was no error in giving defendant's charge 3.
The giving of charge 4 was warranted by the written stipulations of the parties given expression in the face of the notes.
The refusal of charges 1 and 2 would not have been reversible error in the use of the word "believe" instead of the usual words "reasonably satisfied from the evidence." There was a conflict in the evidence, and the charges were not abstract. If they were subject to misleading tendencies, explanatory charges should have been requested. Walls v. Decatur Fertilizer Co., ante, p. 426,
We do not find error in ruling on the motion for a new trial within the rule of Cobb v. Malone Collins,
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.