Ewing v. Wofford

• Decision Date: 11 February 1899
• Citation: 25 So. 251,122 Ala. 439
• Parties: EWING v. WOFFORD.
• Court: Alabama Supreme Court

25 So. 251

122 Ala. 439

EWING v. WOFFORD.

Supreme Court of Alabama

February 11, 1899

Appeal from circuit court, Etowah county; James A. Bilbro, Judge.

Action by Charles W. Ewing, surviving partner, against Thomas J Wofford, Jr. Judgment for plaintiff. On April 10, 1897 Thomas J. Wofford, Jr., filed a motion asking the court to set aside the sale of certain lands made by the sheriff under the levy of an execution on March 18, 1895, which execution was issued on the judgment, alleging in said motion that prior to the levy of said execution the movant had filed in the probate office of Etowah county a declaration and claim to said lands as exempt to him, under the constitution and laws of Alabama, as a homestead. This motion nowhere appears in the bill of exceptions contained in the transcript on this appeal, nor does it appear from said transcript that the motion was enrolled upon the records of the court. The judgment entry recites that the motion was granted, and that the sale was set aside and annulled. From the judgment plaintiff appeals. Affirmed.

Oliver R. Hood, for appellant.

George D. Motley, for appellee.

TYSON J.

An examination of the transcript in this case discloses that the motion inserted therein was upon the motion docket, and it nowhere appears in the bill of exceptions, or that it was enrolled upon the records of the court. This court has uniformly held that the motion docket of the circuit court is not a record of that court, and that the only method by which the ruling of the lower court upon a motion can be reviewed by this court is by incorporating the motion in a bill of exceptions, or by having the transcript show that it was enrolled upon the records of the circuit court by an order thereof. Rule of practice No. 2, Code 1896, p. 1195 (Code 1886, p. 807); Ex parte Highland Ave. & B. R. Co., 105 Ala 221, 17 So. 182; Railroad Co. v. Jones, 102 Ala 212, 14 So. 786; Leinkauff v. Advancing Co., 99 Ala. 619, 12 So. 918; David v. David's Adm'r, 66 Ala. 139; Waring v. Gilbert, 25 Ala. 295. The fact, as insisted by appellant, that a copy of the motion appears in two other places in the transcript, can avail him nothing, since these two copies are the ones issued and served upon the respondent, and should have appeared in the bill of exceptions. James v. Mosely, 47 Ala. 299; Barclay v. Barclay, 42 Ala. 345; Connoly v. Railroad Co., 29 Ala. 373, and authorities cited. The...