| Ala. | Nov 15, 1897
The first question presented arises upon the motion of appellee to strike the bill of exceptions from the record. The motion is predicated upon the following facts : The trial terminated on the 10th of October, 1896. On that day, the court made an order allowing sixty days from date, within which the defendant might prepare a bill of exceptions. Before the expiration of the time, the court extended the time forty additional days'. On the 7th of January, 1897, the judge signed an instrument purporting to be the bill of .exceptions . Instead of filing the instrument in court, it was sent to counsel for appellee, who retained it until February 9th, and with many objections and suggestions, returned it to the judge. After this time, the judge made alterations in the instrument which had been signed as a bill of exceptions. There had been no order granting further time, after the expiration Qf the forty days.
It is clearly the law, that a judge has no authority to sign a bill of exceptions in vacation, after the expiration of the time fixed by the last previous order, nor under any circumstances after six months. — Act of February 22d, 1887, (Acts of 1886-87, p. 126); Beal v. The State, 99 Ala. 234" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/beal-v-state-6515203?utm_source=webapp" opinion_id="6515203">99 Ala. 234; Morris v. Brannen, 103 Ala. 602" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/morris-v-brannen--sons-6515752?utm_source=webapp" opinion_id="6515752">103 Ala. 602; Bass Furnace Co. v. Glasscock, 86 Ala. 244" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/bass-furnace-co-v-glasscock-6513367?utm_source=webapp" opinion_id="6513367">86 Ala. 244. Section 2760 of the Code of 1886 provides that when the bill of exceptions is signed by the presiding judge it “ thereby becomes a part of the record.” We then have a case of a bill of exceptions signed by the judge on the 7th of January, 1897, a day within the time fixed by the order. Instead of filing the bill in court the judge encloses it to counsel for appellee, writing them to the effect that, notwithstanding having signed it, he would make such subsequent changes as he might deem proper to be made. The bill of exceptions was returned to the judge by appellee’s counsel on the 9th of February, 1897, and some
It is a common principle of law, that parol evidence is inadmissible to contradict, add to or vary a record, and by repeated decisions of this court the -rule has.applied to bills of exceptions, after .they had been signed and sealed by the judge. It is equally well settled, that after the judge has signed the bill of exceptions, and court has adjourned, or the time allowed for signing the same has expired, it is beyond his power to alter, modify or explain it. — Chapman v. Holding, 54 Ala. 61" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/chapman-v-holding-6509205?utm_source=webapp" opinion_id="6509205">54 Ala. 61; Pearce v. Clements, 93 Ala. 256; Rosson v. The State, 92 Ala. 76" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/rosson-v-state-6514222?utm_source=webapp" opinion_id="6514222">92 Ala. 76. In the case of Cullum v. Casey, 1 Ala. 351" court="Ala." date_filed="1840-06-15" href="https://app.midpage.ai/document/cullum-v-casey--co-6501302?utm_source=webapp" opinion_id="6501302">1 Ala. 351, 355, it was declared, that where a court assumes to act in a particular cause when it had no power to sit in any cause, its acts are not judicial, and are void.
If it was an admitted fact that the bill of exceptions in the record was the same as that signed by the presiding judge on January 7th, and there was an attempt to correct or modify it in any way by parol, the decisions are conclusive, that it could not be'done.' The question presented is, whether parol evidence is admissible to show that the bill of exceptions, after it became a part of the record, was altered ; or that in fact it was signed at a time when the judge had do power to act. It would seem to be wholly useless to declare that after a bill has been signed, a judge has no power to alter or modify it, and yet hold that a party is concluded from proving the alteration ; or in holding that a judge has no authority to sign a bill of exceptions after a certain date, and yet hold, that any date he may give to the bill of exceptions is conclusive of its truth. In' the case of Kitchen v. Moye, 17 Ala. 394" court="Ala." date_filed="1850-01-15" href="https://app.midpage.ai/document/kitchen-v-moye-6504213?utm_source=webapp" opinion_id="6504213">17 Ala. 394, in answer to a writ of certiorari, á transcript was sent up with a bill of exceptions bearing date as if signed in term time. The certificate of the clerk, however, showed that in fact, it had been signed in vacation. The bill of exceptions was rejected, the court declaring that the judge had no' authority to add to or vary a bill of exceptions in vacation.
The rule which declares that paro.l evidence is inadmissible to vary or contradict a record, does not prohibit the introduction of such evidence when the purpose is to show, that a paper writing or instrument which purports
In the case of Lewis v. Intendant, etc. of Gainesville, 7 Ala. 85" court="Ala." date_filed="1844-06-15" href="https://app.midpage.ai/document/lewis-v-intendant--town-council-of-gainesville-6502366?utm_source=webapp" opinion_id="6502366">7 Ala. 85, it was "held that when the transcript from the commississioners’ court discloses that the court had jurisdiction over the subject, the time when it held its session can not be inquired into collaterally; but in this case the court held that this fact could be controverted in a direct proceeding upon the record. The question came up again in the case of Wightman v. Karsner, 20 Ala. 446" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/wightman-v-karsner-6504763?utm_source=webapp" opinion_id="6504763">20 Ala. 446, in which the court declared that the statement quoted from 7 Ala., supra, was a dictum, and laid down the principle that the time of holding the session could be inquired into even on collateral proceeding, and that the orders of a court, at' a time not authorized by law, were mere nullities.
On the other hand, without deciding the question, if the instrument when signed on the 7th of January, was not intended to be effective as a bill of exceptions, but to be regarded in the nature of an escrow, subject to future action, as might well be inferred from the letter and affidavit of the presiding judge, and it was in fact subsequently rewritten, with material changes, then there is no evidence as to the time when it was intended to operate as a bill of exceptions, except the date of the filing with the clerk, to-wit, April 12, 1897. This date is not only beyond the time within which the judge had authority by virtue of previous orders to sign the bill, but is beyond six months, a time prohibited by the statute. Our statute makes no provision for the filing of a bill of exceptions, and it is unnecessary to consider that view of the question. — 3 Encyc. PI. & Pr., 476. Our conclusion is, the evidence is admissible, and the motion to strike the bill of exceptions must be granted.
This conclusion leaves but two questions open for consideration, and they are the rulings of the court upon the demurrers of plaintiff to pleas numbex*ed 2 and 3 of the defendaxxt. The defense set up in the second plea is, that under the facts as therein stated, the Governor ’was xiot authorized to appoixit a special judge. The plea shows that the regular judge orgaxiized the court and during the term was taken sick and became unable to
The 3d plea was intended to present the defense of contributory negligence. The plea reads as follows : “That the house was located sixty-three feet from the centre of its railroad track, and that it was built many years after the road was constructed and used; that the house was covered with poplar shingles, and was constructed with a valley extendiug from the top of the house, in a western direction, towards the roadway, and that the plaintiff carelessly and negligently suffered leaves of dry and inflammable character to accumulate in said valley, on top of said dwelling-house, and that if the plaintiff’s house was set on fire by sparks from defendant’s engine, the fire originated by sparks falling in the dry leaves which had accumulated in said valley, on top of said house, and had been allowed .by the plaintiff to remain there,” etc.
An examination of the authorities upon the question of the duty of one who owns land adjacent to a railroad track upon which trains are continually running, to guard his property against the possibility from fire from passing engines, shows that the courts are not together. Many decisions are collected in 8 Am. & Eng. Encyc. of Law, p. 16. The author states the text as follows: “When the plaintiff uses his land in a natural and proper way for the purposes for which it is suitable, he is not chargeable with contributory negligence from a failure to take precautions against the negligence of a railway company. When a defendant undertakes to set up the facts, relied upon to constitute contributory negligence, unless the facts stated are such that the court can declare as a legal conclusion that they are sufficient, or unless they are of that character, that a jury would be
' Affirmed.