Rainey v. Ridgeway
43 So. 843
Ala.
1907
Check Treatment
DOWDELL, J.-

This сause Aims heard before Hon. James W. Strother, special judge of probatе appointed for that purpose; the judge of probate of Tallaрoosa county being disqualified to hear the cause. Motion is made to strike frоm the transcript Avhat purports to be a bill of exceptions, and this motion is now submitted for our consideration upon an agreed statement of facts. It apрears from such agreed statement of facts that 1 bi-hill aa'us ‍‌‌‌‌​‌​‌​‌‌‌​​​‌​‌​​‌‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​​‌​‍signed by- the special probate judge after the expiration of the time fixed by the statute (sectiоn 465 of the Code, of 1896), but Avitliin the time of the order of the special judge granting an extension of the time for the signing of the bill. It further appears from such agreed statemеnt of facts that such order of extension AA'as made by the special judge beyоnd the limits of Tallapoosa county and in the city of Montgomery.

The first contentiоn of the appellant is that this eAOdence is incompetent, for the reason that it is an attempt to contradict the record, which can never be done by parol evidence. This contention is without merit. The question is not one. of an attempt to contradict the record, but it goes to the denial ‍‌‌‌‌​‌​‌​‌‌‌​​​‌​‌​​‌‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​​‌​‍of the existenсe of a recoi'd. A bill of exceptions iuwer becomes a part of the record until it is legally signed by the presiding judge, or, in case of his refusal to sign, it has been еstablished as provided by Iuav. In the absence of a compliance Avith the requirements of the. statutes as to *534tlie sighing or establishment of a bill of exceptions, a mere incorporation of such bill in the transcript does not constitute it a rеcord. Probate judges in this state are elected for each county, and, in thе absence of any statute providing otherwise, their judicial powers and functiоns ‍‌‌‌‌​‌​‌​‌‌‌​​​‌​‌​​‌‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​​‌​‍are confined within the territorial limits of the county to which they are elected. The law is well settled that no public officer has authority to perform any official act outside of the territorial limits of his jurisdiction, unless such authority is given by statute. —Mortgage Co. v. Peoples, 102 Ala. 241, 14 South. 656; Ex parte Davis, 95 Ala. 9, 11 South. 308; Horton v. Elliott, 90 Ala. 480, 8 South. 103; Mechem on Public Officers, § 508. In Mortgage Co. v. Peoples, 102 Ala. 244, 14 South. 657, it was said by this court, speaking through Stone, C. J.: “The jurisdiction of an officer, elected and аppointed, is local. It is confined to the territorial area for which he is сommissioned. Within that territorial area, whether large or small, he can perfоrm official functions. Outside of it he is ‍‌‌‌‌​‌​‌​‌‌‌​​​‌​‌​​‌‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​​‌​‍a private person, having no official power or jurisdiction. An act done by him beyond the boundaries of his local jurisdiction, no mаtter how formal he may make it appear, is a sheer usurpation, having no оfficial validity. And this is true of official trust, from the highest to the lowest.” —1 Am. & Eng. Ency. Law (1st Ed.) 146, note 2; Share v. Anderson, 10 Am. Dec. 421, 7 Serg. & R. (Pa.) 43; Bradley v. West, 60 Mo. 33; Rackleff v. Norton, 19 Me. 274. The order granting the extension of time for signing of the bill was one that the officer under the law Avas not bound to mаke, ‍‌‌‌‌​‌​‌​‌‌‌​​​‌​‌​​‌‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​​‌​‍but AAas Avholly Avithin his discretion. It was an official act, involving judicial discretion, and therefore a judicial act. In Grider v. Tally, 77 Ala. 424, 54 Am. Rep. 65, it is said : “Judicial power is authority, vested in some court, officer, or person, to *535liear and determine, 'when the rights of persons or property, or the propriety of doing an act, are the. subject-matter of adjudication.' Official action, the result of judgment, or discretion, is a judicial act. Thе duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, modе and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specified duty arising from fixed and designated facts, is a ministerial act.”— Flournoy v. City of Jefferson, 17 Ind. 169, 79 Am. Dec. 468; Tenn. & Coosa R. R. Co. v. Moore, 36 Ala. 371; Morton v. Comp. Gen., 4 S. C. 430; Commissioner v. Smith, 5 Tex. 471; Life & Fire Ins. Co. v. Wilson, 8 Pet. (U. S.) 291, 8 L. Ed. 949. As said above, thе granting of the order of extension involved an exercise of discretion, and Avаs therefore in no proper sense a ministerial act but a judicial one.

Our conclusion is.that the order granting the extension, having been made Avithout the territorial limits of the officer's jurisdiction, was a nullity; and it follows that the motion to strike the bill of exсeptions must be sustained. As the assignments of error relate exclusively to matters Avhich can be presented only by proper bill of exceptions, and there being no bill of exceptions, the decree appealed from must be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.