2 So. 708 | Ala. | 1887
Motion is made to set aside the affirmance of the judgment in this cause, rendered during the present term, and to vacate the order striking the bill of exceptions from the record. This order was made upon the ground that the bill of exceptions was without date, and was not shown by the record to have been signed within the time prescribed by the statute, which includes four classes of cases. It must appear either (1) that such bill was signed in term-time, before adjournment of the court during which the exceptions was taken; or (2) that it was signed within a certain time after
Under the Code provisions, (section 3113, supra,) it was uniformly held that a bill of exceptions would, on motion, be stricken from the record, unless it appeared on its face to have been signed within the time prescribed by the statute. — Union India Rubber Co. v. Mitchell, 37 Ala. 314; Bryant v. State, 36 Ala. 270; Rule of Practice, No. 30, Code 1876, p. 161. The same rule, for like reasons, must also apply to the two additional cases provided for by the act of February, 1887, to which we have above alluded. No satisfactory reason, in our opinion, exists, or can be assigned, why this should not be so.
In the present motion, however, the certificate of the presiding judge is produced, to the effect that he signed the bill of exceptions within the time which liad been fixed for such purpose by an order of the court during term-time, which was 30 days; and a consent order is produced, which would probably confer such authority on him, duly certified by the clerk of the circuit court. We cannot look to this certificate for the purpose of ascertaining when the judge signed the bill. A bill of ex
The motion is denied.
(This case is ordered by the court to be officially reported, and is reported in connection with .the case referring to it as authority, which case follows. — Reporter. )