64 So. 651 | Ala. Ct. App. | 1914
This case is submitted on a motion to strike the bill of exceptions and on the merits. The proof offered in support of the motion to strike shows that the bill was presented to the trial judge on the
The appellant insists that even though it should be conceded that the facts are as above stated, and that the bill of exceptions was not in fact signed within the time after presentation provided by statute, nevertheless it should not be stricken on this account. This contention is based on the idea that the failure of the judge to sign the bill Avithin the time allowed was attributable to no fault on the part of the appellant or its counsel, but was due to the judge having been induced by counsel for appellee to delay signing the bill until the time allowed by law had expired, and that therefore the appellee ought not to be heard to say that the bill was not signed within the time.
It is shoAvn, by the proof offered pro and con on the motion in this connection, that after the bill was presented to the judge on May 13, 1913, it Avas withdrawn for consideration by counsel for the appellee and appellant, and after the bill had been considered by counsel, and they had agreed on certain changes or alterations being made in the bill as originally presented, counsel for appellant returned it to the judge on August 1, 1913, with these agreed changes incorporated. At the time
It is the rule of estoppel by the conduct of appellee’s counsel that appellant seeks to have applied in this case. Whether or not such an estoppel can be set up with respect to the mandatory requirements of the statutes relating to presenting and signing bills of exceptions is not necessary to decide, and we do not desire that it should be understood that we are passing upon that question, for, even if so, we cannot see where there is room for the proper application of this rule here, in the absence of any showing that the appellant or its counsel was induced to act or to omit to act to its or his prejudice by the conduct of appellee’s counsel complained of.
It is a well-known general rule that a party setting-up and relying upon such an estoppel must have acted or failed to act in reliance upon the conduct or representations of the party sought to be estopped. There was not even shown to subsist between the appellant or its counsel, and the appellee or his counsel, a privity in respect to the matter of the conduct of appellee’s counsel sought to be set up as constituting- an estoppel. Appellant and its counsel are affirmatively shown by the admission of appellant’s counsel in affidavit filed contra the motion to have known nothing of this conduct on the part of appellee’s counsel, complained of as constituting an estoppel, until long afterwards when the cause was submitted, and could not, of course, have relied upon something of which they had no knowledge or information.
The judge had the bill of exceptions in his possession under agreement of counsel on both sides as to what it should contain from August 1, 1913, until after the time alloAved by law for signing expired. If, during
Under the provisions of section 3019 of the Code, “within ninety days” after presentation is the limit of the period of time during which the judge may legally sign a bill of exceptions to make it a part of the record, and the only other method is to establish a bill here upon proper showing made. — Code, § 3021; Edinburg-American Land & Mtg. Co. v. Canterbury, 169 Ala. 444, 53 South. 823. The undisputed evidence offered on the motion shows that the bill was not signed within 90 days after presentation, and what we have said in the case of Leeth v. Kornman, Sawyer & Co., 2 Ala. App. 311, 314, 56 South. 757, 758, is appropriate to the facts shown in the present case: “An unbroken line of cases from the Supreme Court since the declaration to that effect in Kitchen v. Moye, 17 Ala. 394, hold that a strict compliance with the statutes relating to presenting and signing bills of exceptions is essential to give validity to the bill, and that, where there has been a failure to comply, the bill is not a record, and must be stricken from the transcript in the appellate court on motion.”
It seems that appellant’s counsel is not chargeable with culpability in connection with the matter from the facts before us, but this does not alter the undisputed fact that a mandatory provision of the statute necessary to give vitality to the bill as a part of the record has not been complied with, and the motion to strike must prevail.
Only matters that can be presented by bill of exceptions are assigned as error, and, the bill of exceptions having been stricken on appellee’s motion, the judgment appealed from will be affirmed.
Affirmed.