Cameron v. North Birmingham Trust & Savings Bank

• Decision Date: 28 October 1919
• Docket Number: 7 Div. 582
• Parties: CAMERON v. NORTH BIRMINGHAM TRUST & SAVINGS BANK.
• Court: Alabama Court of Appeals

84 So. 569

17 Ala.App. 210

CAMERON v. NORTH BIRMINGHAM TRUST & SAVINGS BANK.

7 Div. 582

Court of Appeals of Alabama

October 28, 1919

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Assumpsit by the North Birmingham Trust & Savings Bank against J.A Cameron. Judgment for plaintiff, and defendant appeals. Affirmed, after bill of exceptions stricken.

By the agreement referred to in the opinion the assignments of error relative to the pleadings were eliminated, as the agreement set forth error in copying the transcript showing rulings on the pleadings. The other facts sufficiently appear.

Riddle & Ellis, of Columbiana, for appellant.

David J. Davis, of Birmingham, Hill, Hill Whiting & Thomas, of Montgomery, and Longshore, Koenig &amp Longshore, of Columbiana, for appellee.

SAMFORD J.

By an agreement on file, whereby it is stipulated that certain corrections shall be made in the record, the first, second third, and fourth assignments of error are eliminated.

The judgment in the court below was rendered on April 25, 1918 and the indorsement shows the bill of exceptions to have been presented to the presiding judge on July 22, 1918. But by affidavit of the presiding judge, filed in support of a motion by appellee to strike the bill of exceptions, it is made to appear that, while the bill of exceptions was mailed to the presiding judge at his residence, and reached his residence on July 22, 1918, not being at home, the judge did not receive the bill of exceptions until July 25, 1918, more than 90 days after the judgment. It will thus be seen that the question presented by the motion to strike is: Was the mailing of the bill of exceptions to the presiding judge at his home such a presentation as is required by section 3018 of the Code of 1907? That the indorsement of the presiding judge may be overturned by oral testimony and ex parte affidavits has already been decided by the Supreme Court. Buck Creek Lbr. Co. v. Nelson et al., 188 Ala. 243, 66 So. 476; L. & N.R.R. v. Malone, 116 Ala. 600, 22 So. 897.

In this case it is made to appear that the presentation did not take place within the 90 days, unless the mailing of the bill of exceptions on the 22d would meet the requirement of the statute. It will be observed that the language of the statute is: "Bills of exceptions may be presented," etc. All of the definitions given of the word "presentation" indicate something more than a mere...