Buckner v. Graves

• Decision Date: 08 November 1923
• Docket Number: 6 Div. 513.
• Citation: 210 Ala. 294,98 So. 22
• Parties: BUCKNER v. GRAVES ET AL.
• Court: Alabama Supreme Court

98 So. 22

210 Ala. 294

BUCKNER v. GRAVES ET AL.

6 Div. 513.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Action on security for costs in an election contest, by R. W Buckner against W. E. Graves and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. B Sloan, of Oneonta, and O. D. Street, of Guntersville, for appellant.

Geo. W Darden, of Oneonta, and B. M. Allen, of Birmingham, for appellees.

THOMAS J.

The submission was on motion to strike the bill of exceptions and on merits.

It is claimed by movants that the bill of exceptions violated provisions of section 3018 of the Code of 1907, p. 231, and rule 32 (circuit court), p. 1526, of the Code of 1907, as amended in 175 Ala. xxi. Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902.

The motion contains grounds to strike the bill of exceptions because charges (given and refused) are embraced therein which should and do appear in the record proper. This action of appellant, out of an abundance of caution, did not render the bill of exceptions, as a whole, subject to be stricken. A proper motion would eliminate a surplusage and tax the costs of same against the offending party. A gross violation of the rule is not presented, and we exercise our discretion in declining to strike the bill of exceptions for embracing therein such redundant matter as the charges. Woodward Iron Co. v. Herndon, 130 Ala. 364, 30 So. 370; L. & N. R. R. Co. v. Hall, 131 Ala. 161, 166, 32 So. 603; Turner v. Thornton, 192 Ala. 98, 68 So. 813. The rule is not iron-bound. "Each case must be judged for itself." Long v. Seigel, 177 Ala. 338, 342, 58 So. 380, 381.

It is established that matters incorporated in the bill of exceptions by the clerk (after presentment to and signature by the judge presiding at the trial), without authority and due instruction so to do, will be stricken on motion. Rule 32, p. 1526, of the Code of 1907; Wimberly v. State, 204 Ala. 629, 86 So. 90; Jones v. First Nat. Bank, 206 Ala. 203, 89 So. 437.

Other grounds of the motion to strike the bill of exceptions are thus adverted to by appellees' counsel:

"Statement by counsel for appellant, set out in original bill of exceptions, as follows: 'The return of the sheriff showed that said notice with a copy of said petition, was served on R. W. Buckner on November 21, 1914,' without its being shown that this return was offered in evidence or that there was any evidence before the trial court and the jury of the fact of or contents of the return."

That is to say, where certain portions of a bill of exceptions (records or the substance thereof) are set out pursuant to the order of the judge approving the bill, without the formal statement that such records were offered in evidence, the incorporation of the same by such order of the judge is a sufficient statement that they were in evidence and were considered in arriving at the verdict or judgment from which the appeal is taken. 4 C.J. § 1839, p. 237.

The court takes judicial knowledge of the several commissioned officers of the state, the terms of their office, the extent of their authority, and the signatures of the clerks of the circuit courts of the state. Touart v. State ex rel. Callaghan, 173 Ala. 456, 56 So. 211; Ryan v. Young, 147 Ala. 660, 41 So. 954. Hence the recitals in the bill of exceptions that the clerk "kept a fee book and on page 584 appeared the following" (setting it out): that the entries were in the handwriting of the clerk "of said court," etc., were properly incorporated in the bill of exceptions. So, also, the recitals of the bill of exceptions were authorized: "The return of the sheriff showed that said notice with a copy of said petition was served personally on said R. W. Buckner on November 21, 1914," and "there was before the court at the hearing of this motion (to set aside the verdict and grant a new trial) the same evidence as was before the trial on the _____ day of December, 1920, the court overruled said motion." Such matter did not render the bill of exceptions subject to be stricken on appellees' motion. The evidence adduced on the trial was in the breast of the court, and was considered by it in disposing of the motion. National Pyrites & Copper Co. v. Williams, 206 Ala. 4, 6, 89 So. 291.

The original bill of exceptions recites and exhibits the motion to retax costs and to set aside and vacate the judgment for costs, and a part thereof was a list of the witnesses incorporated in the bill of exceptions. The recitals of the motion to set aside and vacate the judgment against defendants for costs on the grounds stated, and the statement:

"Attached to said motion and as a part thereof is a list of all the witnesses of contestee, R. W. Buckner, said list setting forth the name of each witness and the amount of cost taxed up by the clerk for each of said witnesses. Opposite the names of many of these witnesses is set out in said motion additional grounds for retaxing such witnesses' fees. These additional grounds were as follows: (1) 'Not challenged.' (2) Did not vote. (3) 'Not examined.' (4) 'Challenged by them.' (5) 'Voted for them.' (6) 'Knocked out by them.' (7) 'Overcharge.' (8) 'Not on poll list,"'

-authorized the clerk to insert in the bill of exceptions that motion and its exhibit of the names of the witnesses in question.

The motion and judgment thereon were sufficiently identified by the judge in the bill of exceptions to authorize the clerk to set the same out. Jones v. First Nat. Bank, 206 Ala. 203, 89 So. 437. The motion to strike the bill of exceptions is overruled.

The suit was by R. W. Buckner, on security executed by W. E. Graves et al., for the purpose of contesting an election. The complaint was in one count, and declared upon the obligation approved by the clerk; the pleas were the general issue, and special pleas of no consideration and payment.

The record of the contest, judgment therein against contestants, security for costs declared upon, the clerk's fee book of costs taxed, subp na docket and account fees proved up by the several witnesses as required by law, were admitted in evidence. So also the motion to retax costs, and the action of the court thereon, were properly before the jury as evidence. Verdict was returned for the defendants.

The complaint set out in hæc verba the obligation declared on and averred (among other things) that the contest was-

"adjudged against the said W. E. Graves, and judgment rendered

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