Beatty v. McMillan

• Decision Date: 16 March 1933
• Docket Number: 6 Div. 136.
• Citation: 147 So. 180,226 Ala. 405
• Parties: BEATTY et al. v. McMILLAN.
• Court: Alabama Supreme Court

147 So. 180

226 Ala. 405

BEATTY et al. v. McMILLAN.

6 Div. 136.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied April 13, 1933.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for breach of contract by William H. Beatty and others against D. W. McMillan. Plaintiffs, being dissatisfied with the judgment in their favor, appeal.

Affirmed.

Horace C. Wilkinson, of Birmingham, for appellants.

Cabaniss & Johnston, of Birmingham, for appellee.

THOMAS Justice.

This case was submitted on motion to strike the bill of exceptions for failure of presentation within the time allowed by the statute, and on the merits.

It is prescribed by statute that bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment was entered, and not afterwards (Miller v. Whittington, 204 Ala. 207, 85 So. 394; Ex parte Hill, 205 Ala. 631, 89 So. 58), and the "presentation of the bill of exceptions within ninety days after the granting or refusing of a motion for a new trial shall be sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial." Section 6433, Code of 1928. The statute further provides that bills of exceptions not so presented or not signed within the time required by law, shall be stricken "only on motion of a party to the record of his attorney." Section 6434, Code. The motion invokes the jurisdiction of the court, and is mandatory to a dismissal within the rule (Godfrey v. Vinson, 215 Ala. 166 110 So. 13; First National Life Ins. Co. of America v Wiginton, 224 Ala. 575, 141 So. 245; Battle v Wright, 217 Ala. 354, 116 So. 349; Ettore v. State, 214 Ala. 99, 106 So. 508); and waiver by agreement is no answer to such a motion, within the statute, to dismiss. The only waiver or consent within the statute is the failure to move to strike on the submission of a case (Ettore v. State; First National Life Ins. Co. of America v. Wiginton, supra); and the motion is taken as waived if not made at or before the submission of the case in this court ( City of Albany v. Black, 216 Ala. 4, 112 So. 433). The same rules obtain where a bill of exceptions is duly presented and not signed within the prescribed time. Williams v. State, 205 Ala. 76, 87 So. 530; Macertney v. Gwin, 218 Ala. 529, 119 So. 238.

A bill of exceptions must be its own expositor, and may not be aided by extraneous evidence, as affidavits or oral evidence. Stearn & Co. v. Lehman-Durr & Co., 169 Ala. 441, 2 So. 708; Edinburgh-American Land Mortgage Co. v. Canterbury, 169 Ala. 444, 53 So. 823; Box v. Southern Railway Co., 184 Ala. 598, 64 So. 69. The affidavits offered do not affect the rule that obtains. The motion to strike the bill of exceptions was duly made and presented to the court at the time of submission of the cause, and thus the question of jurisdiction in the premises is presented, the motion is granted, and the bill of exceptions is stricken.

There was also a motion to dismiss the appeal for failure of Clarence J. Palmer to join in the appeal on March 4, 1932. Thereafter, in this court, on November 28, 1932, said Palmer appeared as a party appellant and tendered his security for costs pursuant to his notice to that end given adverse counsel on November 28, 1932.

The analogy contained in Colbert County v. Tennessee Valley Bank, 144 So. 803, construing section 6144 of the Code may be noted. This, however, is not the question presented by the motion to dismiss the appeal in this case on the ground that Palmer did not appeal and neither of the other parties appellant nor the clerk gave notice to Palmer of such appeal, pursuant to section 6143 of the Code.

Under this statute (section 6143, Code) it has been declared that one of the codefendants may appeal and the court may acquire jurisdiction of the other party not appealing by way of a summons duly issued in the trial court, and service thereof on such party not appealing, or such party may be brought in pursuant to the order of this court, or by his voluntary appearance in this court (City of Birmingham v. Hawkins, 196 Ala. 127, 132, 72 So. 25; Dixie Lumber Co. v. Young, 203 Ala. 115, 82 So. 129; Louisville & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900; Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; New Morgan County Building & Loan Ass'n v. Plemmons, 210 Ala. 16, 97 So. 46; Dinsmore v. Cooper, 212 Ala. 485, 103 So. 460; Mancill v. Thomas, 216 Ala. 623, 114 So. 223; State ex rel. Lynne, Sp. Sol. v. Gurley et al., 217 Ala. 666, 117 So. 297; Ex parte Jones, 217 Ala. 208, 115 So. 301; Hagood v. Cleckler, 221 Ala. 379, 129 So. 2; Mitchell v. Birmingham News Co., 223 Ala. 568, 137 So. 422).

The action in this court amounted to such a voluntary appearance. It results that the motion to dismiss the appeal is overruled, and we shall consider the questions presented and predicated on the record proper.

The assignment of errors and the sustaining of demurrers to counts A and B, added by way of amendment of the complaint, are argued together and will be so considered.

The suit as brought was by "William H. Beatty and W. Henry Beatty, who sue as individuals and as partners doing business under the firm name of Beatty, Palmer and Beatty, plaintiffs vs. D. W. McMillan, defendant," claiming damages for the breach of a written contract of date of March 14, 1928, and supplemental agreements in connection therewith, which are set out in hæc verba and respectively dated September 14, 1928, and March 14, 1929. The contract was made and entered into by and between Clarence J. Palmer, Wm. H. Beatty, and W. Henry Beatty, parties of the first part, and Dan W. McMillan and Y. A. Dyer, parties of the second part; and it is averred "that after the execution of said agreements, during the life thereof, and while same were in force and effect, the defendant D. W. McMillan and/or Y. A. Dyer undertook to construct the machine...