Blair v. Greene

Citation18 So.2d 688,246 Ala. 28
Decision Date25 May 1944
Docket Number3 Div. 410.
PartiesBLAIR ET AL. v GREENE.
CourtSupreme Court of Alabama

Rehearing Granted June 22, 1944.

Sadler & Sadler, of Birmingham, and Fred S Ball, Jr., of Montgomery, for appellants.

Steiner Crum & Weil and Thos. B. Hill, Jr., and Wm. Inge Hill all of Montgomery, for appellee.

Ernest B. Fite, of Hamilton, and A. Leo Oberdorfer, Frontis H. Moore, Benners, Burr, Stokely & McKamy, Geo. P. Bondurant, R. DuPont Thompson, S. M. Bronaugh, Bradley, Baldwin, All & White, James A. Simpson, and Cabaniss & Johnston, all of Birmingham, amici curiae.

LIVINGSTON, Justice.

The appeal is from a verdict and judgment for the plaintiff in a suit brought under the Homicide Act, Section 314, Title 14, Code of 1940, by Brownie Brunell Greene, as administratrix of the estate of Claris Fred Greene, deceased, against Algernon Blair and F. G. Charlton, Sr.

The cause was submitted here on the merits and appellee's motion to strike from the record or transcript in said cause the document or statement purporting to be a transcription by the court reporter of his stenographic notes of the testimony and proceedings on the trial of said cause, and the document or paper therein, purporting to be a bill of exceptions.

The motion to strike the transcription by the court reporter of his stenographic notes is grounded upon the fact that it has not been in any wise approved, allowed or authenticated by the trial judge, as required by section 4 of the Act of the Legislature of 1943, page 423, Code 1940, Tit. 7, § 827(4). And the motion to strike the purported bill of exceptions is grounded upon the fact that the bills of exceptions were abolished by the Act of the Legislature of 1943, page 423, Code 1940, Tit. 7, § 827(1) et seq.

In the case of Spurlock v. Knight, 18 So.2d 685, we held that section 4 of the legislative act, supra, requires that the transcription by the court reporter of his stenographic notes of the testimony and proceedings in the trial must be approved by the trial judge and filed with the clerk within ninety days after date of trial or date of trial court's ruling on motion for new trial. It was also ruled in that case that the Act of the Legislature of 1943, page 423, did not violate section 45 of the Constitution of Alabama of 1901. No constitutional question is raised in the instant case. The legislative act referred to abolished bills of exceptions in this jurisdiction. It necessarily follows that the motion to strike both papers or documents must be, and is, sustained.

We are not unmindful of appellant's insistence that the purported bill of exceptions should be taken and considered by this Court as a compliance with Section 3 of the Act involved. But section 3 has no field of operation unless the court reporter be deceased or for other good reason cannot transcribe the evidence in accordance with the provisions of section 1 of this Act.

The only assignments of error insisted upon in appellant's brief relate to the court's oral charge, written charges refused to the defendants, and motion for new trial. Obviously, such matters cannot be here reviewed in the absence of a compliance with the Act of the Legislature of 1943, page 423.

The cause is affirmed.

Affirmed.

GARDNER, C. J., and THOMAS, FOSTER, and STAKELY, JJ., concur.

On Rehearing.

GARDNER Chief Justice.

Upon original consideration of this cause we gave to Section 4 of the act abolishing bills of exceptions a rather literal interpretation, Code 1940, Tit. 7, § 827(4). The holding was that the transcript of evidence, duly certified by the reporter and filed with the clerk, was also required to be approved by the trial judge whether or not there was any question raised as to its correctness. Upon reconsideration we are persuaded this was too narrow an interpretation of the act.

Of course, the rule is well recognized that in the construction of a statute, the legislative intent is to be determined from a consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found. The intent so deduced from the whole will prevail over that of a particular part considered separately. This is, in effect, the statement as found in 59 C. J. p. 993, and recognized as the correct principle by numerous decisions of this Court. Among these authorities we may note: Board of Education v. State, 239 Ala. 276, 194 So. 881; Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 167 So. 256; State ex rel. City of Birmingham v. Board of Revenue, 201 Ala. 568, 78 So. 964.

Prior to the passage of the act here in question the preparation of a bill of exceptions was, of course, under supervision of the attorney prosecuting the appeal. It was in narrative form, Circuit Court Rule 32, Title 7, Appendix p. 1032, Code of 1940, and the bill of exceptions which purported to be only a stenographic report of the trial below was considered in violation of this rule and subject to be stricken. Gassenheimer Paper Co. v. Marietta Paper Co., 127 Ala. 183, 28 So. 564.

We think it is reasonable to assume the passage of this act (General Acts 1943, p. 423, Title 7, § 827(1), et seq., Cumulative Pocket Part, Code of 1940) was sponsored by the members of the legal profession in the Legislature. Both the title and the body of the act clearly disclose the definite intent to do away with bills of exceptions and to provide for the evidence to be transcribed and made a part of the record. The authorities to be found in the notes to Rule 75 of the Federal Practice, 28 U.S.C.A. following section 723c, 19 Hughes' Federal Practice, p. 89, disclose conflicting views prevailing among the members of the Bar, as well as a considerable number of the courts and commentators, as to the advisability of the narrative form of testimony in contrast with the question and answer form. Many of these authorities are to be found on pages 97-99, 19 Hughes' Federal Practice. The proper presentation of a case, therefore, on appeal has become one of more or less frequent discussion.

Of course, the history of legislation of this character is to be considered in giving proper interpretation to the act. We find that in the first section of the act, bills of exceptions are abolished and a transcription of the evidence substituted therefor. The reporter is to transcribe the evidence, including objections, oral motions, and rulings of the court, certify to it, and file it with the clerk. The evidence so transcribed and certified and filed shall be a part of the record, and assignments of error may be made as though the transcript constituted a bill of exceptions. This section concludes, however, with the provision for a hearing before the judge should either party question the correctness of the transcribed testimony; whereupon the trial judge shall hear the parties and make such corrections and additions as he may think proper. Of course, this latter clause contemplates that the judge making such corrections and additions to the certified transcription of the evidence shall designate his approval after such...

To continue reading

Request your trial
30 cases
  • Alabama State Federation of Labor v. McAdory
    • United States
    • Supreme Court of Alabama
    • May 25, 1944
  • Ala. Dep't of Revenue v. U.S. Xpress Leasing, Inc., 2150547.
    • United States
    • Alabama Court of Civil Appeals
    • December 2, 2016
    ...is found. The intent so deduced from the whole will prevail over that of a particular part considered separately."" ‘ Blair v. Greene, 246 Ala. 28, 30, 18 So.2d 688, 689 (1944)." ‘ "It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of th......
  • City of Brundidge v. Ala. Dep't of Envtl. Mgmt., 2140325
    • United States
    • Alabama Court of Civil Appeals
    • February 5, 2016
    ...is found. The intent so deduced from the whole will prevail over that of a particular part considered separately."" ‘Blair v. Greene, 246 Ala. 28, 30, 18 So.2d 688, 689 (1944). " ‘ "It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of th......
  • State Farm Mut. Auto. Ins. Co. v. Motley, 1031285.
    • United States
    • Supreme Court of Alabama
    • March 25, 2005
    ...is found. The intent so deduced from the whole will prevail over that of a particular part considered separately." Blair v. Greene, 246 Ala. 28, 30, 18 So.2d 688, 689 (1944). "It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of the Legi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT