Boss Livery Co. v. Bailey

• Decision Date: 20 April 1920
• Docket Number: 6 Div. 617
• Parties: BOSS LIVERY CO. v. BAILEY.
• Court: Alabama Court of Appeals

85 So. 572

17 Ala.App. 418

BOSS LIVERY CO. v. BAILEY.

6 Div. 617

Court of Appeals of Alabama

April 20, 1920

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by S.S. Bailey against the Boss Livery Company for damages for failure to deliver goods. Judgment for defendant, and plaintiff appeals. Affirmed.

Weatherly Deedmeyer & Birch, of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

BRICKEN P.J.

This cause is submitted here upon a motion to strike the bill of exceptions and on its merits. The grounds of the motion to strike is based upon the fact that the purported bill of exceptions does not bear the necessary indorsement that it was presented to the judge who tried the case within 90 days as required by law.

The cause was tried on May 5, 1919. The bill of exceptions bears no indorsement whatever of its "presentation" to the judge who tried the case, but does contain the indorsement that it was "signed" by the judge on October 23, 1919; and, so far as this court may know, the bill of exceptions was not presented to the presiding judge "before" the date upon which it was signed by him.

A bill of exceptions must be presented within 90 days from the date on which the judgment was rendered and not afterwards. Code 1907, § 3019. "The judge must indorse thereon and as part of the bill, the true date of presenting." This limitation of 90 days is jurisdictional, and is a mandatory requirement of the statute. Without such indorsement there is in fact no bill of exceptions, and without this jurisdictional requirement being complied with, the appellate courts cannot consider the assignments of error predicated upon and presented by the so-called bill of exceptions. In Wrenn v. Baker, 15 Ala.App. 434, 73 So. 756, it was said:

"Under the authorities, the limitation of 90 days for the presentation of a bill of exceptions is jurisdictional and an instrument signed by the trial judge, but not presented within the required time, is no bill of exceptions."

See also, Box et al. v. Southern Ry. Co., 184 Ala. 598, 64 So. 69, and cases cited.

In an attempt to avoid the operation of the settled rule as to the presentation of the bill of exceptions, we find in the record immediately following the bill of exceptions an affidavit by one of the attorneys for appellant, dated August 4, 1919, in which he says:

"Affiant avers that proper steps have been taken to secure an appeal in said cause, and that a bill of exceptions has been prepared in said cause, and that such bill of exceptions cannot be presented to the presiding judge on account of his absence from the state."

This affidavit cannot be looked to to supply the failure of the bill of exceptions to show presentation. Wright v McCullough, 16 Ala.App. 575, 80 So. 149. To do so would be to disregard and ignore the statutory requirements in such cases, as well as the...