103 Ala. 602 | Ala. | 1893
A motion is made to strike from the record what purports to be a bill of exceptions in this case, because it does not appear to have been signed by the presiding judge within the time, and as required by law. The bill concludes with this language : “and the plaintiff presents this his bill of exceptions, and most respectfully asks that the court sign the same, within the time allowed,” &c., and then follows the name, <£J. R. Tyson, Judge.” It bears no daté, and there is nothing in the record to show when it was signed, whether in term time or afterwards. There is not shown to have been any consent or agreement of counsel in writing for it to be signed after the adjournment of court, but the judgment entry recites, that thirty days be allowed plaintiff to present a bill of exceptions.
Section 2761 of the Code provides that, “No bill of exceptions can be signed after the adjournment of the court, during which the exception was taken, unless by consent or agreement of counsel in writing, except in such cases as is otherwise provided.” This has been the law of this State since 1844, except under the latter act, the time within which counsel might agree for a bill to be signed in vacation was limited to ten days after the adjournment of the term of the court, at which the trial was had ; and since the act of February 14, 1870 (Acts 1869-70, p. 99), that limitation of ten days was taken out.
The statute of 1844 has been many times before this court, and always with a uniform construction, that it was not directory, but mandatory, on the judges, to sign the bills, if at all, strictly within the terms of the statute,
On the 27th February, 1887, an act was appxwed, (Acts 1886-87, p. 126), providing, that in all cases whex-e bills of exceptions are authorized, the court in term time, may, on the applxcation of either party, fix the time in which bills of exception shall be signed, and the judge, in vacation, may, for good cause, extend the time fixed in term time ; provided, in no case shall the time allowed exceed six months, and provided further, that nothing herein contained shall prevent parties from agreeing as to time, as xxow provided by law. This act has received the construction of this court, to the effect that a bill of exceptions may be signed in vacation, within the tixne fixed by an order of court entered . in term time, and this may be enlarged by a subsequent order made before the expiration of the time fixed by the first, but not after its expiration,'and not extending in all.beyond six months. — Bass Furnace Co. v. Glasscock, 86 Ala. 244; Ladd v. The State, 92 Ala. 58; Rosson v. The State, 92 Ala. 76.
As we have seen, by the repeated and unifox’m rxxlings of the court, in the construction of a similar statute, — to which this later statute is supplementary, — the bill of exceptions bearing no date, and the record containing no evidence that it was signed in term time, or vacation, pursuant to the written agreement of the parties, cannot be looked to by us for any purpose. The construction given the act of 1844 must apply to the present statute, when the bill not being signed in term time,
Affirmed.
