Dantzler v. Swift Creek Mill Co.

• Decision Date: 20 December 1900
• Parties: DANTZLER ET AL. v. SWIFT CREEK MILL CO. [1]
• Court: Alabama Supreme Court

30 So. 674

128 Ala. 410

DANTZLER ET AL. v. SWIFT CREEK MILL CO. ^[1]

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Autauga county; J. C. Richardson, Judge.

Action by Dantzler & Sons against the Swift Creek Mill Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

The bill of exceptions was signed in vacation and no order allowing same appears in the record of the court, but the bill itself recited that it was signed "within the period allowed and ordered by the court for the presentation of a bill of exceptions."

There were certain demurrers filed by the plaintiffs and the judgment entry recited that "plaintiffs demurred to pleas Nos. 9 and 12; which upon consideration of the court were overruled."

There were verdict and judgment for defendant and plaintiffs appeal.

Gunter & Gunter, for appellants.

Lomax Crum & Weil and Thos. M. Stevens, for appellee.

HARALSON J.

The bill of exceptions in this case shows on its face that it was signed by the presiding judge in vacation and after the adjournment of the court at which the trial was had. Nothing appears in the record of the court below showing that any order was made by the court in term time, authorizing a bill of exceptions to be signed in vacation. The recital in the bill of exceptions that the same was signed "within the period allowed and ordered by the court for the presentation of a bill of exceptions" is nothing more than the statement by the judge and is insufficient to supply the omission of so important a requirement as the making of an order by the court. It cannot, therefore, be considered for any purpose. Carter v. Long (Ala.) 27 So. 465; Morningstar v. Stratton (Ala.) 25 So. 573; Alexander v. State. 117 Ala. 220, 23 So. 48; Elliott, App. Proc. § 801, and authorities cited in note 3; Kimball v. Penney, 117 Ala. 245, 22 So. 899; Maddox v. Broyles, 42 Ala. 436; Bryant v State, 36 Ala. 270.

The two remaining assignments of error relate to the rulings of the court on the pleadings. It has been repeatedly held by this court that a mere recital in a minute entry that certain demurrers "were overruled," or "sustained," by the court, as the case may be, does not show a sufficient judgment by the court upon which to base an assignment of error. Bank v. Hunt, 28 So 488; Carter v. Long, 28 So. 74; Improvement Co v. Dubose, 28 So. 380; Cartlidge v. Sloan, 26 So. 918; McDonald v. Railway Co., 26 So. 165, and...