Commissioners' Court of Chilton County v. State

• Decision Date: 05 June 1906
• Parties: COMMISSIONERS' COURT OF CHILTON COUNTY v. STATE EX REL. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

41 So. 463

146 Ala. 439

COMMISSIONERS' COURT OF CHILTON COUNTY v. STATE EX REL. SOUTHERN RY. CO.

Supreme Court of Alabama

June 5, 1906

Appeal from Circuit Court, Chilton County; A. H. Alston, Judge.

Mandamus by the state, on the relation of the Southern Railway Company, against the commissioners' court of Chilton county. From an order granting the writ, commissioners appeal. Reversed and rendered.

This was a petition addressed to the circuit court of Chilton county, seeking to require the judge of probate of Chilton county, as chairman of the commissioners' court, and the commissioners' court of said county, to pass upon and allow or refuse a claim presented to it by the Southern Railway Company for a sum of money alleged to have been overpaid as taxes by said railroad. It seems from the facts in the record that this claim was presented to the predecessors of the present appellants, and rejected; but no minute of the action of the court was entered upon the minute books, and the claim was lost. Afterwards a substantial copy of the claim, together with the facts relied on why it should be paid, duly verified by affidavit, was presented to the present appellants. It seems no order was indorsed upon the claim denying it, but the following order in reference to the claim was entered upon the minutes of the commissioners' court: "Upon consideration of the petition of the Southern Railway Company, filed by A. S. Lyman, its agent and attorney, on the 28th day of July, 1905, it is the opinion of the court that the petition was not entitled to the relief sought in said petition. It is therefore ordered and adjudged by the court that the same be, and is hereby, denied." The petition sought a mandamus to compel action by the commissioners' court to properly audit, and either pass or deny, said claim. There were a number of motions demurrers, and other pleadings, not necessary to be here set out, as they were not properly presented for review in this court. Mandamus was awarded, and from this order this appeal is taken.

Smith &amp Middleton, for appellant.

Pettus Jeffries & Pettus, for appellee.

TYSON J.

It appears from the judgment entry that respondents' demurrer to the petition was, on motion, stricken from the files. This motion, while appearing in the transcript as a part of the record of the trial court, is not incorporated in the bill of exceptions. It was not a pleading in the cause ( Meyer v. Block, 139 Ala. 174, 35 So. 705), and therefore not properly a part of the record of the court below, and cannot be looked to or considered by us for the purpose of determining whether properly or improperly granted. Jones v. Anniston, 138 Ala. 199, 35 South 112, and cases there cited. Speaking to this point, it was said in Randall v. Wadsworth, 130 Ala. 638, 31 South, 555: "The second assignment is based on the ruling of the court on motion to strike certain pleadings. Rulings on motions to strike can be presented for review on appeal only by bill of exceptions. Motions of this character are usually oral, and form no part of the record as pleadings proper, and, although reduced to writing and copied into the record, cannot be considered as forming any part of the proceedings constituting the record proper in the court below." In Spraggins v. State, 139 Ala. 102, 35 South, 1000, it also said: "Pleadings and the rulings thereon should be shown by the record, and, when a motion to strike pleadings is ruled on, a bill of exceptions is proper to show the motion and that an exception was reserved to the ruling; but at the same time the record proper should show that a judgment was rendered by the court." In Forbes v. Rogers (Ala.) 38 So. 843, this language is used: "The action of the trial judge in striking pleas will not be reviewed by this court, when the bill of exceptions fails to set out the motion." Quotations from other cases might be indulged in, but these will suffice. See, also, Lynn v. Bean, 141 Ala. 236, 37 So. 515; Hooper v. State, 141 Ala. 111, 37 So. 662. Furthermore, after the demurrer was stricken from the files, it was no longer a part of the record of the court below, and could only be brought back into the record by being incorporated in the bill of exceptions; and, although in the transcript as a part of the record of that court, it is improperly there for our consideration on this appeal. Muller v. Ocalla F. & M. Works (Fla.) 38 So. 64; Elliott on Appellate Pro. § 816; 3 Ency. Pl. Pr. pp. 400, 401. So, then, we have not the demurrer on the motion before us upon which the trial judge acted. His ruling on the motion is therefore not revisable.

After the demurrer was stricken and the declination of respondents to plead further, upon motion of relator its petition for the writ of mandamus was granted, and the writ awarded. We apprehend that it will not be gainsaid that this was error if upon the facts alleged in the petition it appears that the relief should not have been granted. In this respect, if the facts alleged do not authorize the award of the writ, there can be no...