Briggs v. Tennessee Coal, Iron & R. Co.

• Decision Date: 19 December 1911
• Citation: 57 So. 882,175 Ala. 130
• Parties: BRIGGS v. TENNESSEE COAL, IRON & R. CO.
• Court: Alabama Supreme Court

57 So. 882

175 Ala. 130

BRIGGS v. TENNESSEE COAL, IRON & R. CO.

Supreme Court of Alabama

December 19, 1911

Rehearing Denied Feb. 15, 1912.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Millage Briggs against the Tennessee Coal, Iron & Railroad Company for injuries while engaged in its employment. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Anderson McClellan, and Mayfield, JJ., dissenting.

A trial was had and judgment entered under the following facts: On the 25th day of March, 1910, judgment was rendered in favor of the defendant, and the judge's bench notes showed as follows: "By leave of the court, plaintiff refiled his complaint and amendments thereto. By leave, defendant refiled its demurrers heretofore filed, and also additional demurrers, by separate paper of this date, to each count of the complaint as refiled. By leave, the defendant refiled pleas 1, 2, and 4 and plea 3 as amended, by separate paper filed after demurrer to each count of the complaint overruled. Plaintiff, by leave, refiled its demurrers heretofore filed to pleas 2 and 4, and plea 5 Demurrers to plea 3 sustained. Verdict and judgment for the defendant." From said bench notes the clerk entered the following judgment: "On this the 25th day of March 1910, this cause being reached on the docket and called for trial, came the parties, by their attorneys, and the plaintiff, by leave of the court first had and obtained refiles his complaint and the amendment thereto. The defendant now, by leave of the court first had and obtained refiles its demurrers thereto, as appears by separate paper writing this day filed. Demurrers to each count of the complaint are by the court heard and considered, whereupon it is ordered, adjudged, and decreed that said demurrers be and they are hereby overruled. Defendant now, by leave of the court first had and obtained, refiles pleas 1, 2, and 4, and plea 3 as now amended, as appears by separate paper writing this day filed. The plaintiff now, by leave of the court first had and obtained, refiles his demurrer heretofore filed to pleas 2, 4, and 5. The demurrer to plea 3 is by the court heard and considered, whereupon it is ordered, adjudged, and decreed by the court that the said demurrer is hereby sustained; and issue now being joined thereupon," etc. It appears that the clerk, or the plaintiff's attorney, with the consent of the clerk, changed the minutes by drawing a red line or lines through them, and entered in lieu of said judgment the following judgment: "On this the 25th day of May, 1910, this cause being reached upon the docket and called for trial, came the parties by their attorneys, and plaintiff, by leave of the court first had and obtained, refiles his complaint and the amendment thereto. The defendant now, by leave of the court first had and obtained, refiles its demurrers to the complaint, and also files additional demurrers thereto, as appears by separate paper writing this day filed. The demurrers to each count of the complaint are by the court heard and considered, whereupon it is ordered and adjudged that the said demurrers be and they are hereby overruled. The defendant now, by leave of the court first had and obtained, refiles pleas 1, 2, and 4, and plea 3 as now amended, as appears by separate paper writing this day filed. Plaintiff now refiles to plea 5 all demurrers heretofore filed to pleas 2 and 4. Demurrers to plea 2 are by the court heard and considered, whereupon it is ordered and adjudged by the court that the demurrers to plea 2 be and the same are hereby overruled. Demurrers to plea 3 are by the court heard and considered and it is ordered and adjudged by the court that the demurrers to plea 3 be and the same are hereby in all things sustained. Demurrers to plea 4 are by the court heard and considered, whereupon it is ordered and adudged that the demurrers to plea 4 be and the same are hereby in all things overruled." Then follows the same order as to plea 5, together with a joinder of issue and finding in favor of plaintiff. On the 6th day of December, petition therefor having been filed, and set for hearing on December 1, 1910, by the defendants in said cause, said last-named judgment was stricken, and the original judgment as entered by the court was restored to the minutes. In the meantime a bill of exceptions had been prepared and presented to and signed by the judge, containing the minute entry as changed and last made. The court's attention having been called to the change by this motion, the judge struck his name from the bill of exceptions. The cause was submitted on motion to establish the original bill of exceptions as signed by the judge, and from the order made by the judge, striking the changed minute entry and restoring the original minute entry.

Denson & Denson, for appellant.

Percy, Benners & Burr, for appellee.

ANDERSON J.

Section 3019 of the Code of 1907 authorizes the presentation to the judge of a bill of exceptions within 90 days after judgment is entered, and further gives the judge 90 days after the presentation within which to sign same. This period of 90 days given the judge was intended as a sufficient time within which he should go over and determine the correctness of same, and it stands to reason that he will not sign it before ascertaining its correctness. Section 3018 provides that, after he signs said bill, it thereby becomes a part of the record, and after it becomes a part of the record, if in term time, it would be in fieri until the adjournment of the court, but, like other parts of the record, cannot be altered or modified after adjournment. Posey v. Beale, 69 Ala. 32; Chapman v. Holding, 54 Ala. 61; Branch Bank v. Kinsey, 5 Ala. 9; Weir v. Hoss, 6 Ala. 881; L. & N. R. Co. v. Malone, 116 Ala. 600, 22 So. 897; Bridges v. Kuykendall, 58 Miss. 827. On the other hand, if it is not signed in term time, the statute keeps the matter as to the bill of exceptions in fieri until the same is signed, or until the expiration of the period for signing or presenting same unless it is sooner signed; but the very moment it is signed and filed it becomes a part of the record, and, if it becomes such after the term of court has adjourned, it is no longer in fieri, and it is beyond the power of the judge to change or modify same. If the bill as signed by him is not the proper one as tendered, the aggrieved party may proceed to establish same under section 3021. Turner v. White, 97 Ala. 549, 12 So. 601. But, until steps are taken to do so, the bill, as signed and filed by the judge, will be treated by this court as the true and correct one. The bill of exceptions is in fieri for 90 days from presentation and 90 additional days for consideration by the judge, but, if the bill is presented sooner and the judge sees fit to sign and file the same before the expiration of the 90 days given him within which to sign, the suspension is thus cut down, and, after the signing and filing of same, the matter is no longer in fieri, and is beyond the power of the judge. The cases of Posey v. Beale, supra, and L. & N. R. R. Co. v. Malone, supra, both held that the bills of exceptions there involved could not be changed or altered by the judge after being signed and after the adjournment of court, and stated that the change could not be made after the adjournment of court or beyond the time agreed upon by counsel. This last expression was mere dictum in said cases, as neither of them involved the question of changing a bill of exceptions after it was signed and filed and before the expiration of the time for signing same, for in each case the attempted correction was after the adjournment of court, and after the expiration of the time given for signing the bill. We think that what the court meant to state in the cases supra was that the question as to the bill of exceptions was in fieri only during the term of court or until the expiration of the time within which the bill could be signed, and that the court did not mean to hold that the signing and filing of same when done within the time allowed would authorize the judge to subsequently withdraw his signature or change or alter same, even if done before the expiration of the period within which the bill could be signed. In other words, we hold that, if the bill is signed in the term time, the matter is still in fieri until the adjournment of the term, but, if not signed in term time, it is still in fieri until the bill is signed by the judge and filed with the clerk, the period, of course, not to extend beyond the time fixed by law for signing, but, when the bill is signed and delivered, the matter is no longer in fieri, and the power and control of the judge is at an end. The action of the judge in withdrawing his signature from the bill of exceptions was subsequent to the end of the term, as fixed by the practice act, being more than 30 days after the rendition of the judgment. Weakley's Local Laws of Jefferson County, p. 598, § 20; Stein v. McArdle, 25 Ala. 562. It was also subsequent to the signing and filing of same with the clerk and was unauthorized and void. Ex parte Nelson & Kelly, 62 Ala. 379, 380; Dudley v. Chilton County, 66 Ala. 597, and authorities supra. We will therefore treat and consider the bill of exceptions signed and filed on January 24th as the true and correct one.

As we understand the facts in this case, a judgment was rendered for the defendant on May 25, 1910, and a judgment was written up by the clerk on a slip or folio, which was subsequently to be bound in book form, as the minutes of the court, and which said entry conformed to the bench notes made during the trial; that within 10 days thereafter the minute entry as written by the clerk was changed...