Clark v. Henderson

• Decision Date: 18 March 1943
• Docket Number: 4 Div. 277.
• Citation: 244 Ala. 237,12 So.2d 743
• Parties: CLARK v. HENDERSON.
• Court: Alabama Supreme Court

12 So.2d 743

244 Ala. 237

CLARK v. HENDERSON.

4 Div. 277.

Supreme Court of Alabama

March 18, 1943

Rehearing Denied April 15, 1943. [Copyrighted Material Omitted]

Powell & Fuller, of Andalusia, for appellant.

Mizell & Pearson, of Andalusia, for appellee.

THOMAS Justice.

The submission was on the motion and on merits. The grounds of the motion to strike the bill of exceptions, among other things, are:

"For that the Record on this appeal, towit: page 18 of the Transcript, affirmatively shows a failure on the part of the appellant, who is the party filing the bill of exceptions herein, to furnish a copy thereof to the adverse party or his attorney and that no endorsement to that effect was made upon the bill of exceptions, in that portion of the trial court's order appearing on said page 18 and reading as follows:

"'Although the proof and the above sworn motion show that the party filing said bill of exceptions did not furnish to the adverse party or his attorney a copy thereof, and that no endorsement to said effect appears upon said bill of exceptions, I take it, this matter addresses itself to the Appellate Court on proper motion."'

See Code 1940, T. 7, § 822.

The original bill of exceptions is before us. It concludes as follows:

"The above motion for a new trial having been regularly heard and presented to the Court on November 5th, 1941, and held for further consideration, and the same being in all things considered and understood by the Court, it is now Ordered and Adjudged that the said motion be, and it is hereby overruled and denied, and the defendant excepts.

"Done at Andalusia, Ala. this December 29th, 1941. Robert S. Reid Judge.

"The above and foregoing is all the evidence in this cause on the main trial of said cause and the motion for a new trial. Presented this 9th day of March, 1942. Robert S. Reid, Judge. Signed and approved this May 6, 1942. Robert S. Reid, Judge. Filed in this office this 6 day of May, 1941, Solomon Tisdale, Clerk."

The endorsement of the clerk above set out is in accordance with the statute. No question is raised as to the correctness of the respective dates. The provisions of the statute touching this motion are codified and annotated in Code of 1940, T. 7 § 822.

The answer and affidavits of the appellant attorney in opposition to the motion to strike the bill of exceptions show the material and controlling facts. The decisions as to perfection of bills of exception are well understood.

The judgment in question is that pronounced by the court. Russell v. State, 202 Ala. 21, 79 So. 359.

The ninety days in which a bill of exceptions may be filed, within the statute, runs from the final order on final motion. Lambert v. Bowman-Moore Hat Co., 223 Ala. 1, 136 So. 740. The bill of exceptions may not be corrected so as to incorporate new exceptions or grounds of error. Illinois Central R. Co. v. Posey, 212 Ala. 10, 101 So. 644. The time for presenting the bill of exceptions embraces the last day, the first day being excluded. Rice v. J. H. Beavers & Co., 196 Ala. 355, 71 So. 659. Daylight saving time does not shorten this required time. Ellard v. Goodall, 203 Ala. 476, 83 So. 568. Such are the rulings of long standing relative to the filing of bills of exception.

It is further decided: "According to our cases the failure to observe this section [Code 1940, T. 7, § 822] as to time for presenting bill of exceptions may be shown by parol, and, being shown, must result in the bill being stricken. Buck Creek Lbr. Co. v. Nelson, 188 Ala. 243, 244, 66 So. 476. This failure may also be shown by affidavit. Johnson v. Frix, 177 Ala. 251, 58 So. 427." [Italics and brackets supplied.]

We find no decision on the motion insisted upon by appellant, but Code 1940, T. 7, § 822, p. 697, carries the following annotations:

"It may be shown by affidavit that a bill of exceptions was not presented and signed within time allowed by law, although it appears on its face to have been presented to and signed by the trial judge within such time. Johnson v. Frix, 177 Ala. 251, 58 So. 427, Mayfield and Simpson, JJ., dissenting.

"It may also be shown by parol evidence.-Parol evidence is admissible to show that a bill of exceptions was not presented or signed within the time required by this section, although it purports on its face to be valid. See Leeth v. Kornman, etc., Co., 2 Ala.App. 311, 56 So. 757. See also catchline infra, 'Proof of this failure may be shown by parol evidence,' * * *.

"Noncompliance invokes jurisdiction of supreme court.-Proper and seasonable motion to strike bill of exceptions, alleging that it was not signed within mandatory terms of this section, invokes jurisdiction of supreme court to that end under § 824 of this title. Battle v. Wright, 217 Ala. 354, 116 So. 349."

Such are the analogies to be found under the decisions construing the statute in question. Pertinent provisions of the statute are Code 1940, T. 7, §§ 822, 824 and 827, which are to be construed in pari materia, that the ends of justice may be met.

We find that no injustice has been done the appellee by the manner or method of presentation of the bill of exceptions in the instant case, and in the failure to furnish to the adverse party or his attorney a copy thereof. The failure to endorse a certificate thereon to that effect, over his signature, worked no hardship as it is shown appellee had the bill of exceptions in his possession and corrected the same before it was returned to the trial judge for his signature. Code 1940, T. 7, § 822. The adverse parties were duly informed of the contents of the bill of exceptions presented, signed and filed, as required by law. The power to strike a bill of exceptions is contained in Code 1940, T. 7, § 827. This is shown by the answer of appellant to the motion to strike the bill of exceptions, as follows:

"The Appellee's attorney accepted from the Court the Original bill of exceptions, examined it, criticized it, and corrected it, and not until after the lapse of ninety days after it was presented to the Court did he raise any objection to the manner in which it was presented, therefore, he is now estopped to complain of the manner of presenting said bill of exceptions, but has waived strict compliance with the provisions of the statute by his own action in dealing with said bill of exceptions.

"The bill of exceptions was presented to the Court on March 9th, 1942, twenty days prior to the expiration of the ninety day period, that said bill of exceptions was turned over to appellee's Attorney, who, without raising any objection to the manner of presenting them, proceeded to correct it by interlineation, in ink, in his own handwriting by adding to and striking from said bill of exceptions as prepared and presented, all of which could have been done and the bill of exceptions approved, as was approved, and filed with the Clerk within the ninety days, therefore, the Appellee has waived any and all irregularities as to presenting the bill of exceptions, it not being shown that he has been prejudiced thereby. Appellant further says that Appellee's action in correcting the Bill of Exceptions, without objection timely interposed, and withholding same until after expiration of ninety days, he is estopped from taking advantage of any irregularity in presenting or filing of the said bill of exceptions."

The old provisions of the Code of 1907 were revised in the Code of 1923, § 6433, and the Code 1940, T. 7, § 822 has been amended as indicated in the editor's note, at page 692, where it is said:

"* * * Also a provision has been added that the party filing the bill of exceptions must furnish the adverse party with a copy and certify on the original that he has done so. It has been further provided that the judge may sign the bill of exceptions anywhere in the state.

"In Driver v. Fitzpatrick, 210 Ala. 500, 98 So. 468, it was held that the indorsement of a presentment of a bill of exception is mandatory and jurisdictional. As the indorsement is jurisdictional, it is not waived by a submission without a motion, by the appellee, to strike it from the files. See also, Williams v. Goodyear Tire, etc., Co., 207 Ala. 335, 92 So. 471. These cases were decided prior to the revision of § 6434 (now § 827 of this title) when the provision for waiver of time of presentment was inserted in that section. It seems that it is mandatory that the bill of exceptions be presented, the presentment indorsed by the clerk or the judge, and the bill signed by the judge. Although these requirements are mandatory the time fixed by this section, for answering such requirements may be waived under § 827 of this title."

And § 827 of T. 7, Code 1940, p. 703, is as follows: "The appellate court may strike a bill of exceptions from the record or file because not presented or signed within the time required by law, but shall not do so ex mero motu, but only on motion of a party to the record or his attorney; the object and effect of this statute being to allow parties to waive or consent for the time of signing bills of exception."

And the Editor's note follows: "This section is restrictive, and not enabling, and its only purpose and effect is to prevent the appellate court from striking bills not presented and signed within the time prescribed by law, ex mero motu, as was formerly the practice. It does not change the mandatory character of the provisions of § 822 of this title, nor arm the appellate court with any discretion with respect to the granting of a motion properly made and seasonably invoking the mandatory rule of the statute. See Ex parte Hill, 205 Ala. 631, 89 So. 58."

The case of Hudson v. State, 243 Ala. 271, 9 So.2d 757 was to the effect that a bill of exceptions...