Wright v. McCullough

Nov 12, 1918

8 Div. 482.

Reporters:: , ,
Before:: Brown

BROWN, P. J.

[1] While the defendant’s plea to the jurisdiction- of the court does not aver in terms that the defendant had a permanent residence in Morgan county, this defect is not pointed out by the demurrer, and the plea was not subject to the grounds of demurrer assigned, and they were properly overruled. Code 1907, § 6110; Rand v. Gibson, 109 Ala. 266, 19 South. 533; Code, § 5340.

[2-4] The bill of exceptions was signed more than 90 days from the rendition of the judgment, and, so far as the record certified here shows, there is no indorsement on the bill of exceptions showing when it was presented to the trial judge for his signature. On motion of appellant, a certiorari was granted to correct this defect in the record, if defect it was, and the only return to the writ is an ex parte statement of the clerk in the form of a certificate to the effect that the date of the presentation of the bill of exceptions shows that it was presented to the trial judge on the 31st day of May, 1916. It has been repeatedly held that the record cannot be supplemented or impeached by such a paper. Edinburgh-Land Mortgage Co. v. Canterbury, 169 Ala. 444, 53 South. 823; Leeth v. Kornman-Sawyer & Co., 2 Ala. App. 311, 56 South. 757. The indorsement in the bill of exceptions, when the bill is presented within the time allowed by the statute, and the indorsement made as required by the statute, is a part of the record, and, if such indorsement appeared on the bill of exceptions in the case, a transcript thereof made oh transcript paper should have been certified to the court in response to the writ of' certiorari. The bill of exceptions not showing on its face that it was presented within 90 days from the rendition of the judgment, under the uniform rulings of this *576 and the Supreme Court it cannot he looked to as a basis of showing error. Box v. Southern Railway, 184 Ala. 598, 64 South. 69; Harper v. State, 13 Ala. App. 47, 69 South. 302; Wrenn v. Baker, 15 Ala. App. 434, 73 South. 756; Scott v. Ala., T. & N. Ry. Co., ante, p. 371, 77 South. 983.

No error appearing in the record, the judgment of the court will be affirmed.

Affirmed.