50 So. 310 | Ala. | 1909
It is to be regretted that the bill of exceptions in this case has,to be stricken upon the motion of appellee. The judgment or decree appealed from was entered April 24, 1908, by the probate court. This was six days before the new Code became operative,. The appellant, being doubtful as to whether, the old Code or the new controlled as to the bill of exceptions, attempted to comply with the provisions of both. The probate judge evidently thought the new Code controlled, and acted under its provisions, and consequently the bill was presented and signed within the time prescribed by the new Code (Code 1907, § 10) ; but the time was not extended, within which it might be signed under the old Code, and hence it was not signed in the manner and within the time prescribed by the Code of 1896, or by Gen. Acts-1908, p. 74. This appears' to be «conceded by the parties to the appeal.
The question is therefore presented to us Avhich of the two Codes applied or controlled as to the signing «of the bill of exceptions. It is clear that the old Code-applied to all cases of appeal in which the judgment oi decree was rendered before the new Code became operative. This is made clear by section 10 of the Code, which has always been the repealing and retaining section of all previous Codes, and is made such as to the present Code, being now substantially as it has always been. This section has always contained the following provisions: “This Code shall not affect any existing right, remedy, or defense, nor shall it affect any prosecution now commenced, or which shall hereafter be «commenced, for any offense already committed. As to
It therefore follows that the bill of exceptions must be stricken. The bill being stricken, and the record proper being looked to alone, we find no error that can be raised on this appeal. The judgment or decree appealed from must therefore be affirmed.
Affirmed.
