American Life Ins. Co. v. Anderson

• Decision Date: 08 March 1945
• Docket Number: 8 Div. 302.
• Parties: AMERICAN LIFE INS. CO. v. ANDERSON.
• Court: Alabama Supreme Court

21 So.2d 791

246 Ala. 588

AMERICAN LIFE INS. CO. v. ANDERSON.

8 Div. 302.

Supreme Court of Alabama

March 8, 1945

Rehearing Denied April 26, 1945. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Hugh A. Locke, of Birmingham, Claud D. Scruggs, of Guntersville, and Wade H. Morton, of Birmingham, for appellant.

Thos. E. Orr, of Albertville, and Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

Appellee filed objections and motion to strike the bill of exceptions or transcript of evidence in lieu thereof upon the following grounds, in substance:

Said bill of exceptions or transcript of evidence is not made up in accordance with the Act approved July 12, 1943, effective September 1, 1943 (Gen. Acts 1943, p. 423, Code 1940, Tit. 7 § 827(1), Cumulative Pocket Part); nor in accordance with Supreme Court Rule 48, Code 1940, Tit. 7, Appendix (245 Ala. xxi).

The certified transcript, as now made up, was not actually completed and filed within the ninety-day period referred to in said Rule 48.

Said transcript was not actually completed and filed within the time for taking an appeal as provided for in said act and said rule.

Said transcript was never approved by the trial court as provided by section 4 of said act.

The notice given by the court reporter to the attorney for appellee of the filing of the transcript of the testimony with the clerk, was given before parts of the transcript were actually filed with the clerk.

No notice was ever given by the court reporter to attorney for appellee of the filing of that part of the transcript of testimony filed January 4, 1945.

The exhibits offered in evidence on pages 35-2, 35-6, 35-7, 35-12, 35-13, 35-18 of the transcript are not copied in the record, nor is there any certificate of the court reporter that they cannot be so copied in the record. Nor are they properly described and identified in some instances to apprise appellee and the appellate court what document or exhibit is referred to.

The said act and rule require that this be done by the court reporter--not the clerk; the clerk was not the one who handled these papers and documents when they were being introduced. The effort on the part of appellant to cure these defects by having the clerk attempt to identify and make certificates to these several exhibits as shown by transcript pages 35-36 to 35-41, inclusive, January 27, 1945, long after the 90 days have expired and even after the time for appeal has expired, will not cure these defects in the record.

No notice of these changes and additions to the record was ever given to attorneys for appellee by the court reporter.

No notice of such changes and additions was ever given to attorneys for appellee by the clerk until January 27, 1945, long after the time for taking the appeal had expired, at which time the clerk brought these additional sheets--pages 35-36 to 35-41 to the office of the attorney for appellee and placed the same in the copy of the record which had previously been furnished said attorney.

That part of the transcript, pages 35-1 to 35-35, inclusive, was not filed with the clerk by the court reporter until January 4, 1945, and no notice of its filing with the clerk was ever given to attorneys for appellee by the court reporter.

The transcript was originally made up and certified by the clerk on the 22d day of November, 1944, and a copy of same furnished attorneys for appellee. At that time the transcript did not contain pages 35-1 to 35-35, inclusive, nor pages 35-36 to 35-41, inclusive. Pages 35-1 to pages 35-35, inclusive, were placed in the record on January 10, 1945, and pages 35-36 to 35-41, inclusive, were placed in the record January 5, 1945. Motion for new trial was overruled July 17, 1944.

The certificate of the clerk certifying to the record as of January 26, 1945, is not the original certificate, the original bearing date of November 22, 1944. The certificate bearing date January 26, 1945, is a new certificate made after pages 35-36 to 35-41 were placed in the record.

The record as now made up is a mass of jumbled units, made up at different intervals and incorporated in the record at different times and does not meet the requirements of Acts 1943, p. 423, Code, Tit. 7, § 827(1), Cumulative Pocket Part, and Supreme Court Rule 48.

For the reasons stated, appellee moves to strike the entire bill of exceptions or transcript of evidence in lieu thereof from the files of the Supreme Court; to strike pages 35-1 to 35-41, inclusive, and page 37 1/2 from the files; to strike pages 35-1 to 35-35, inclusive; to strike pages 35-36 to 35-41, inclusive; to strike from the files the refused charges appearing on page 37 1/2 which have recently, on January 26, been added to the record.

Accompanying the motion is an affidavit by Thomas E. Orr, attorney for appellee, which is in substance as follows:

That the only notice ever served upon counsel for appellee of the filing of the transcript of the proceedings with the clerk of the circuit court by the official court reporter in said case was the notice appearing on page 366 of the record as the same is now made up, and which notice was served on or about July 18th or 19th, 1944; that no notice was ever given counsel for appellee by said court reporter of the filing of that part of the transcript relating to the trial on the plea in abatement, now incorporated in the record on pages 35-1 to 35-35, purporting to have been filed January 4, 1945; that had notice been given to counsel for appellee of the filing of said transcript, the matter of filing same after expiration of 90 days from date of overruling of motion for new trial and also matters contained in said transcript would have been the subject of controversy before the trial judge on the part of appellee. That the clerk of the circuit court delivered to affiant a copy of the record in said case about November 22, 1944, or shortly thereafter; that when so delivered said record contained the pleadings in the case and the transcript of the evidence filed with the clerk by the court reporter on July 18, 1944 (Tr. p. 366), said transcript being now set forth in the record on pages 47 to 366, inclusive, but did not contain any of the matter now set forth in the record on pages 35-1 to 35-41. That shortly after January 1st the clerk of the circuit court requested affiant to return his copy of the record to him for some amendments which had been requested by counsel for appellant, which affiant did, and a few days thereafter the clerk returned the copy to affiant and an examination of same disclosed that pages 35-1 to 35-35 had been added to the record which included the transcript of the evidence taken on the trial of the plea in abatement which is marked filed January 4, 1945.

That no notice was ever given counsel for appellee of the filing of this transcript of evidence, nor was any application ever made to the trial court for a correction of the record and notice given to counsel for appellee, as provided in Rule 48 of the Supreme Court.

That the transcript of the testimony taken on trial of the plea in abatement was never filed with the clerk of the circuit court and the record contains nothing that it was so filed, but according to affidavit of the clerk was delivered to him by counsel for appellant.

That on January 19, 1945, affiant was informed that two refused charges given by the trial judge on the trial of the plea in abatement had been left out of the record, at which time no application was made to the trial court for a correction of the record and no notice given counsel for appellee that such would be done. That a few days later the clerk of the circuit court brought to affiant's office pages 35-36 to 35-41, inclusive, 37 1/2 and 378 and inserted them in affiant's copy of the record which had previously been furnished affiant. That pages 35-36 to 35-41, inclusive, contained all new matter which had never been in the record before, page 37 1/2 replaced a page of the same number but differed from the page removed in that it now has set out thereon two written charges refused by the trial court, which did not appear on the page removed. That page 378 replaced a page of the same number but differs from the page removed in that the clerk's certificate on the page removed was dated November 22, 1944, whereas on the page which he inserted, his certificate is dated January 26, 1944.

That there were no agreements ever made by counsel for appellee that the various and sundry changes and amendments could be made in the record as set forth in this affidavit and the affidavit of the circuit court clerk.

The affidavit of J. B. Hawk, Clerk of the Circuit Court of Marshall County, accompanying the motion, is in substance as follows:

That the original transcript of the proceedings had and done in the case of J. Willie Anderson vs. American Life Insurance Company was filed with affiant on July 18, 1944, by Gordon L. Evatt, Official Court Reporter of the Circuit Court of Marshall County, as shown by certificate, Transcript page 366; that this is all the court reporter filed with affiant in said cause; that said transcript did not contain the proceedings and testimony taken on the trial of the plea in abatement, pages 35-1 to 35-41, inclusive, as shown by the record as same is now made up; that said transcript filed with affiant and certified by said official court reporter contained pages 47 to 366, inclusive, only. That after the appeal bond was filed affiant proceeded to make up the record and incorporated the entire transcript filed with affiant by said court reporter in the record which now comprises pages 47 to 366 of said record.

That after the record was prepared affiant delivered the original to cou...