Anniston Electric & Gas Co. v. Cooper

• Decision Date: 28 February 1903
• Citation: 34 So. 931,136 Ala. 418
• Court: Alabama Supreme Court
• Parties: ANNISTON ELECTRIC & GAS CO. v. COOPER. [a1]

34 So. 931

136 Ala. 418

ANNISTON ELECTRIC & GAS CO. v. COOPER. ^[a1]

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by W. H. Cooper against the Anniston Electric & Gas Company to recover damages for alleged wrongful ejection of plaintiff from one of defendant's cars, and for assault made on plaintiff by defendant's servant in such ejection. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

In this court the appellee moved the court to strike the bill of exceptions from the record, upon the ground that it was not signed within the time prescribed by law. Just before the signature of the judge to the bill of exceptions, it is recited that the bill of exceptions was "signed by the Honorable John Pelham, Judge of the Seventh Judicial Circuit of Alabama, who presided at the trial of said cause, on this the 8th day of January, 1902, within the time fixed by order of the judge of said court therefor." The other facts relating to this motion are sufficiently stated in the opinion. The only assignments of error being based upon the rulings shown by the bill of exceptions, it is unnecessary to set out the facts of the case.

Caldwell & Johnston, for appellant.

Matthews & Whiteside, for appellee.

McCLELLAN C.J.

It has been the settled law in this state since the decision of the case of Kitchen v. Moye, 17 Ala. 143, that it must affirmatively appear upon the record in this court that the bill of exceptions was signed within the time prescribed by law, else it will be stricken. The bill in this case was not signed in term time, but the court, on November 29, 1901 made this order: "And defendant is allowed thirty days within which to present, file, and have signed a bill of exceptions." No bill was signed, filed, or presented within the period thus allowed, which expired, in usual course, December 29, 1901. But on the next day--December 30th--the judge of the circuit court in which the trial was had made and filed the following order "It is ordered that the time for preparing and having signed the bill of exceptions in this case be, and the same is hereby, extended ten (10) days from this date." It is sought to bring this latter order within the period of the first by reference to section 11 of the Code of 1896 in connection with the fact that December 29th, the last day of the period limited by the order of the court, was Sunday. That section provides: "The time within which any act is provided by law to be done must be computed by excluding the first day and including the last; if the last day is Sunday it must also be excluded." The argument is, obviously, that December 29th being, by the terms of this statute, excluded from the computation of 30 days, the next day--Monday, December 30th--must be included to constitute the 30-day period allowed by the order. There is very great force in this contention as an original proposition. But it is not an original proposition in this court at this time. The position of appellant's counsel has been foreclosed against them by the construction put upon this statute...