Carter v. Long

• Decision Date: 08 February 1900
• Parties: CARTER ET AL. v. LONG ET AL.
• Court: Alabama Supreme Court

27 So. 465

124 Ala. 330

CARTER ET AL. v. LONG ET AL.

Supreme Court of Alabama

February 8, 1900

Appeal from circuit court, Walker county; James J. Banks, Judge.

Action by Long Bros. against D. K. Carter and others to recover on a bond executed by the defendants. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

The appellees, Long Bros., brought an action against the appellants to recover an amount due upon a bond executed by the defendants. From a judgment in favor of the plaintiffs the defendants appeal. The facts relating to the only questions reviewed on the present appeal are sufficiently stated in the opinion.

T. L Sowell, for appellants.

Appling & McGuire and W. H. Smith, for appellees.

DOWDELL J.

The bill of exceptions in this case is signed in the following manner: "Signed this, the 6th day of May, within the time allowed by the court. Jas. J. Banks, Judge." The regular terms of the circuit court of Walker county begin on the third Mondays in February and August in each year, and may continue five weeks. Code 1896, § 908. The bill of exceptions was signed after the expiration of the term of the court at which the case was tried. There is nothing in the record to show any agreement of counsel for the signing of the bill of exceptions in vacation, nor is there anything in the record showing that the court in term time fixed a time in which the bill of exceptions might be signed, unless it can be said that what is stated by the presiding judge in signing the bill of exceptions as above set out shows an order made in term time. This statement as made by the judge does not even show the year when the same was signed, and it is but a statement by the presiding judge that time was allowed by the court. In the case, of Morningstar v Stratton, 25 So. 573, decided at the last term of this court, it was held that a memorial of the order made by the court fixing a time for the signing of a bill of exceptions in vacation should be done in writing; that such an order was too important to rest in parol. There is nothing in the record to show any minute entry, or that an order was made in writing by the court in term time, fixing the time within which the bill of exceptions might be signed; and the statement made by the presiding judge, and signed by him, is not sufficient to show that such an order was in writing. See Code 1896, §§ 616, 617. Under the authority cited above, the ...