Birmingham Ry. & Electric Co. v. James

• Decision Date: 24 November 1903
• Citation: 138 Ala. 594,36 So. 464
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. JAMES.
• Court: Alabama Supreme Court

36 So. 464

138 Ala. 594

BIRMINGHAM RY. & ELECTRIC CO. v. JAMES.

Supreme Court of Alabama

November 24, 1903

On Rehearing.

Appeal from City Court of Birmingham.

Action by L. James against the Birmingham Railway & Electric Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Application for rehearing overruled.

Walker Tillman, Campbell & Morrow, for appellant.

Lane &amp White, for appellee.

DOWDELL J.

It appears from the record that, after the court had sustained a demurrer to the defendant's fifth plea, a trial was then had, resulting in a verdict and judgment for the plaintiff which was afterwards, on motion of the defendant for a new trial, set aside, and the cause then continued to another term. At the subsequent term the plaintiff amended his complaint, whereupon the defendant refiled to the complaint as amended, as the record recites, "its pleas heretofore filed to the original complaint." After this no demurrer was interposed to the pleas, and the cause was tried on issue joined on all of the pleas. From this it appears that the defendant had the benefit of its plea as originally filed--at least, it does not appear to the contrary from the record--and consequently suffered no injury from the ruling on the demurrer in the first instance. The ruling of the court on the demurrer to the fifth plea is the only error assigned on the record proper.

The bill of exceptions was not signed at the term at which the trial was had, nor was there any order of the court made extending the time for signing the same. There was an agreement of counsel extending the time, and by which the time is fixed for the signing of the bill after the commencement of the next regular term of the court. The time was still further extended, and the bill was then signed within the extended period, which was after the beginning of said subsequent term of the trial court. This was in violation of rule 30 of practice (Code, p. 1200), and under the authority of Cooley v. United States Saving & Loan Association, 132 Ala. 590, 31 So. 521, the bill cannot be looked to or considered as to matters arising and exceptions taken on the trial, forming no part of the record for that purpose. And it follows that the assignments of error based on matters which alone can be shown by proper bill of exceptions cannot be considered. The bill of exceptions, however, having been signed during the term at which the ...