Battle v. Wright

• Decision Date: 29 March 1928
• Docket Number: 7 Div. 787
• Citation: 217 Ala. 354,116 So. 349
• Parties: BATTLE v. WRIGHT et al.
• Court: Alabama Supreme Court

116 So. 349

217 Ala. 354

BATTLE v. WRIGHT et al.

7 Div. 787

Supreme Court of Alabama

March 29, 1928

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Action by Mrs. M.E. Wright and others against Sallie Battle. Judgment for plaintiffs, and defendant appeals. Affirmed.

C.R Robinson, of Birmingham, and Hood & Murphree, of Gadsden, for appellant.

James A. Embry, of Ashville, and Culli, Hunt & Culli, of Gadsden for appellees.

THOMAS J.

The bill of exceptions was presented to the trial judge on June 6, 1927, which was signed by him on August 6, 1927.

A proper and seasonable motion to strike the bill of exceptions, alleging that it was not signed within the mandatory terms of the statute (section 6433, Code of 1923; Ex parte Hill, 205 Ala. 631, 89 So. 58), invokes the jurisdiction of this court to that end (section 6434, Code of 1923; Ettore v. State, 214 Ala. 99, 106 So. 508; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13).

It is insisted by counsel for appellant that the 6th day of August 1927, fell on Sunday. A reference to a 1927 calendar, by way of refreshing our judicial knowledge informs us that said date was Saturday, and 61 days from and excluding the date of presentation of the bill of exceptions. 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 that day is Sunday, it must also be excluded, and the Monday following shall be counted as the last day within which the act may be done. Section 13, Code of 1923; Stewart v. Keller, 197 Ala. 575, 73 So. 89; Yates v. Dobson, 213 Ala. 547, 105 So. 691; Cox v. Hutto, 216 Ala. 232, 113 So. 40; Obear-Nester Glass Co. v. Mobile Drug Co., 208 Ala. 618, 95 So. 13.

If the date of presentation, to wit, June 6th, be excluded, and Saturday August 6, 1927, be included, the bill of exceptions was signed on the sixty-first day. This was not sufficient under the mandatory provisions of the statute, "and the bill of exceptions must, if correct, be signed by the judge within sixty days thereafter," meaning to exclude the date of its presentation. Code, § 6433; Stroup v. Ala. Power Co., 216 Ala. 290, 113 So. 18; J.H. Arnold & Co. v. Jordan, 215 Ala. 693, 112 So. 305; Hale v. Worthington, 210 Ala. 544, 98 So. 784; Ill. Cent. Co. v. Posey, 212 Ala. 10, 101 So. 644. The change from 90 days to 60 days within which the bill of exceptions must be signed by the presiding judge is noted in U.S. Cast Iron Pipe & Foundry Co. v. Williams, 213 Ala. 115, 104 So. 28. The motion was proper and seasonable, and is granted. The bill of exceptions is stricken.

The action of the court in the refusal to appellant of requested charges or the giving of charges for appe...