Buck Creek Lumber Co. v. Nelson

• Decision Date: 07 November 1914
• Docket Number: 61
• Citation: 188 Ala. 243,66 So. 476
• Parties: BUCK CREEK LUMBER CO. v. NELSON et al.
• Court: Alabama Supreme Court

66 So. 476

188 Ala. 243

BUCK CREEK LUMBER CO. v. NELSON et al.

No. 61

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.

Action by Frank Nelson, Jr., and another, as partners, against the Buck Creek Lumber Company, for breach of contract. Judgment for plaintiffs, and defendant appeals. Affirmed.

The judgment from which the appeal was taken appears to have been rendered October 25, 1912, the bill of exceptions was filed with the judge January 22, 1913, and appears to have been signed by the judge April 21, 1913. The affidavits show that the bill was really not signed until after May 1, 1913. There are no counter affidavits.

Reese &amp Reese, of Selma, and Powell & Hamilton, of Greenville, for appellant.

Leader & Ewing, of Birmingham, for appellees.

SAYRE J.

Appellees' motion to strike the bill of exceptions must be granted. It seems quite clear that the bill was signed long after the expiration of the period prescribed by the mandatory terms of the statute, section 3019 of the Code. Affidavits submitted on behalf of the motion so state the fact, and it is not denied. The deposition of the presiding judge has not been taken, and he has refused appellees' request for an ex parte affidavit, but the terms of that refusal, when construed in connection with the language of the request leave no doubt that the judge, while refusing the request for an affidavit, was careful not to deny the fact that the signing of the bill had been deferred beyond the statutory limit. Rather, he admits the fact by assigning a reason for it. Had the fact been otherwise, it cannot in reason be doubted that some sworn affirmation to that effect would be found in the record.

The statute is imperative in its requirement. The limit fixed by it cannot be extended to suit the exigencies of parties or cases. If a correct bill of exceptions had been presented appellant might have established it by a proceeding in this court. That remedy he has not sought. According to our cases the failure to observe the statute may be shown by parol and, being shown, must result in the bill being stricken. L. & N.R.R. Co. v. Malone, 116 Ala. 600, 22 So. 897; Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843; Baker v. Central of Ga. Ry. Co., 165 Ala. 466, 51 So. 796.

Answering the argument made in support of those assignments of error based upon the record proper, it was not necessary that the complaint should show that the contract alleged to have been breached was in writing. Whilden v. M. & P. Nat. Bank, 64 Ala. 29, 38 Am.Rep. 1.

By several special pleas it was made to appear that defendant's certificate of incorporation contained a provision as follows:

"That no draft, bill of exchange, check, no bond or other evidence of liability or contract creating any liability on the part of the company shall be valid unless the same be in writing signed by the president and countersigned by the treasurer; and provided expressly that any liability otherwise created shall be null and void."

These pleas alleged that the contract mentioned in the complaint was not in writing signed by defendant's president and countersigned by its treasurer, and hence, these pleas conclude, the contract was ultra vires, void, and its breach constituted no cause of action. Demurrers to these pleas were sustained. In these rulings there was no error.

Subdivision 10 of section 3446 of the Code is as follows:

"The certificate [of incorporation] may also contain any other provision which the incorporators may choose to insert for the regulation of the business

and for the conduct of

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