Burke v. City of Birmingham

• Decision Date: 12 February 1935
• Docket Number: 6 Div. 537.
• Parties: BURKE et al. v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

159 So. 367

26 Ala.App. 328

BURKE et al. v. CITY OF BIRMINGHAM.

6 Div. 537.

Court of Appeals of Alabama

February 12, 1935

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Alice Burke and Wirt R. Taylor were convicted of violating ordinances of the City of Birmingham, and they appeal.

Affirmed.

F. B Irwin, of Birmingham, for appellants.

W. J Wynn and Ralph E. Parker, both of Birmingham, for appellee.

BRICKEN, Presiding Judge.

It appears from the record this cause originated in the recorder's court of the city of Birmingham, wherein these appellants were tried and convicted for the violation of certain ordinances of said city. They appealed to the circuit court, and by consent they were there tried jointly, upon complaints filed by the attorney for the city. The judgment entries show that the trial was had in the circuit court on May 9, 1933. They were again convicted and from the judgments of conviction this appeal was taken. The record also discloses that defendant's motion for new trial was heard and determined on June 5, 1933.

The case is here submitted upon motion of appellee to strike the bill of exceptions upon the grounds that the purported bill of exceptions was not signed by the trial judge within the time allowed and provided by law (Code 1923, § 6433).

It is conceded that the bill of exceptions was presented and so indorsed by the trial judge, within the time required by law. The bill of exceptions appears on its face to have been signed by the trial judge on September 30, 1933, which if correct would have been within the sixty days allowed by the statute for the trial judge to sign it. But appellee insists, as a matter of fact, that the trial judge did not sign it until on October 5, 1934, which was more than a year after the required time for signing had elapsed. This insistence is sustained by the undisputed evidence. In this connection and in support of the motion, appellee has filed in this court the affidavit of the trial judge, which contains the statement: "On October 5, 1934, I signed the bill of exceptions in the cases of the City of Birmingham v. Alice Burke, and Wirt R. Taylor, but said signing was dated as of 'September 30, 1933.' This was done in keeping with an agreement made with counsel for the defendants by me, to the effect I would sign the bill of exceptions as within the time required by law so as to enable him to provide me with a stenographic transcript of the testimony as taken down by the court reporter. After the time for signing the bill of exceptions had passed, I told Mr. Ralph E. Parker, Assistant City Attorney, of my agreement and he stated he was unwilling to abide by the same." The affidavit of Ralph E. Parker, counsel for appellee in this cause, is of the same import. No evidence to the contrary has been submitted.

Counsel for appellants earnestly insists that the indorsements on the bill of exceptions cannot be impeached by the affidavit of the trial judge, and further that the affidavits filed in support of the motion are insufficient. This insistence, however, is not supported by the authorities. In Johnson v. Frix, 177 Ala. 251, 58 So. 427, it was held: "It may be shown by affidavit that a bill of exceptions was not presented and signed within the time allowed by law, although it appears on its face to have been presented to and signed by the trial judge within such time." In Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113, the court said: "A motion is made to strike the bill of exceptions on the ground that it was not presented within the time required by law. While it purports to be so presented and signed, the affidavit of the judge signing the same shows it was not presented nor signed within time, but was dated back. Such fact may be shown by affidavit filed in this court in support of the motion. * * * The motion to strike must be granted." In Buck Creek Lumber Co. v. Nelson et al., 188 Ala. 243, 66 So. 476, the Supreme Court held: "A bill of exceptions must be filed within ninety days from the date of the judgment, and where it appears that it was not filed within that time it will be stricken on motion; a failure to file the bill within such period may be shown by parol." The following authorities are of the same import: Sellers et al. v. Dickert, 194 Ala. 661, 69 So. 604; Bain et al. v. Lang, 18 Ala. App. 679, 94 So. 251; Cameron v. North Birmingham Trust & Savings Bank, 17 Ala. App. 210, 84 So. 569; Southern Ry. Co. v. Scottsboro Wholesale Co., 24 Ala. App. 310, 134 So. 685.

The foregoing authorities, and others which might be cited, are conclusive of the point of decision involved. It is definitely settled that notwithstanding the bill of exceptions shows upon its face to have been presented and signed by the trial judge within the time required by law yet the fact that it was not so presented and signed may be shown by affidavit or by parol, and if it so appears, the bill of exceptions must be stricken on...