135 Ala. 542 | Ala. | 1902
Confessedly the bill of exceptions cannot be looked to for the purpose of reviewing exceptions reserved upon the trial of the cause, but it is properly a part of the record for the purpose of reviewing the action of the court in overruling the motion for the new trial, provided it was signed in time and the motion was not discontinued.—Bank of Dothan v. Wilks, 132 Ala. 573; Ala. Midland R. Co. v. Brown, 129 Ala. 282. The motion was heard and determined adversely to the appellant on the 14th day of June, 1901, and the bill of exceptions was signed on the 23d day of July following. On the. 29th day of June, 1901, the last day of the term at which the motion was heard, an order was entered allowing defendant sixty days within which to have the bill of exceptions signed. From this statement it is clear that it was signed in time. — Acts, 1900-1901, p. 3288.
The next proposition insisted upon in support of the motion to strike the bill of exceptions is that the motion for the new trial was discontinued. Conceding, and and doubtless it is true, that the recitals in the record show that there was a discontinuance of the motion for a new trial by a failure to enter an order of continuance of it at the term immediately preceding the one at which it was heard and disposed of, yet the discontinuance does not seem to have been insisted upon in the court below. On the contrary, it appears that both parties appeared and proceeded to. trial on the merits of the motion, and that the decision of the court was upon the merits. This was clearly a waiver of the discontinuance.—Kennedy v. Pickering, Minor, 138; McRory v. Vinzant, Ib. 401; Ex parte Hall, 49 Ala. 675; Reeves v. The State, 96 Ala. 33; McConnell v. Worns, 102 Ala. 587. The motion to strike the. bill of exceptions must, therefore, be overruled.
This brings us to a consideration of the questions involved in the overruling of the defendant’s motion for a
Reversed and renderd.