Ex parte Mobile Light & R. Co.

• Citation: 78 So. 399,201 Ala. 493
• Decision Date: 23 March 1918
• Docket Number: 1 Div. 29
• Parties: Ex parte MOBILE LIGHT & R. CO. MOBILE LIGHT & R. CO. v. THOMAS.
• Court: Alabama Supreme Court

78 So. 399

201 Ala. 493

Ex parte MOBILE LIGHT & R. CO. MOBILE LIGHT & R. CO. v. THOMAS.

1 Div. 29

Supreme Court of Alabama

March 23, 1918

Certiorari to Court of Appeals.

Action by Elijah Thomas against the Mobile Light & Railroad Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which affirmed the judgment (77 So. 463), and defendant brings certiorari. Judgment of Court of Appeals reversed, and cause remanded.

Anderson C.J., dissenting.

Harry T. Smith & Caffey, of Mobile, for appellant.

Webb McAlpine & Grove, of Mobile, for appellee.

MAYFIELD J.

This application presents to us the question whether or not the Court of Appeals has properly construed section 5364 of the Code, as last amended by the Legislature. Acts 1915, p. 815. The Court of Appeals held that by virtue of the last amendment, the rulings of the trial court, in the giving or refusing of requested charges or instructions to the jury cannot be reviewed on appeal, unless they appear in the transcript as a part of the record proper, though they do appear in the transcript as a part of the bill of exceptions. If this be a proper construction of the statute, it is made so by the amendment, because the statute had been theretofore uniformly construed by this court, to the effect that rulings on such charges would not be reviewed on appeal unless both the charges and the rulings thereon were shown by the transcript as a part of the bill of exceptions, although the charge and the ruling thereon did appear in the transcript as a part of the record proper. See numerous annotations to this section of the Code. The statute as now amended provides that:

"It shall not be necessary to set out the charges in the bill of exceptions or state therein that an exception was reserved to the giving or refusing of charges requested, but it shall be presumed that each charge was separately requested and a separate exception reserved as to the giving or refusal thereof. Every general charge shall be in writing or be taken down by the court reporter as it is delivered to the jury." Acts 1915, pp. 815, 816.

This amendment now unquestionably renders it unnecessary to set out the charges or the rulings thereon, or to show that an exception to the ruling was had or reserved, in case of an appeal; but does it require that they shall appear in the transcript as a part of the record, and not as a part of the bill of exceptions? Are the charges, by virtue of the amendment, now made matter of record proper, as well as the rulings thereon and the exceptions thereto, in the sense that they cannot be shown on appeal except as a part of the record proper, like the indictment, pleas, judgment, etc.? We hold not. The language making the charges themselves, and the rulings thereon, a part of the record proper is not at all changed from that in our present Code and in several preceding Codes. To construe this language as making the indicated matter of record proper, in the sense that an indictment, pleading, or judgment is such would, of course, render the matter improper in a bill of exceptions. As before stated, this court not only held that it was not of record proper in this sense--the sense that it was improper in a bill of exceptions--but held that it could not be reviewed on appeal unless it did appear as a part of the bill of exceptions. This court has always held that this identical language did constitute the charges and the rulings thereon matter of record when in writing, as the statute directed, but not of record proper in the sense that an indictment or judgment is such. It has always held that charges and the rulings thereon, when the statute was observed, did in one sense become a part of the record of the trial court because the statute said so; but it has also held that the rulings on the charges, like motions which were in writing, and actually put on the records in the trial court, could not be reviewed on appeal unless shown by the bill of exceptions. Such charges, when the statute was followed, have always been held to be a part of the record of the trial court, but not a part thereof for review on appeal to this court. In Nuckols v. State, 109 Ala. 2, 4, 19 So. 504, 505, it was said by McClellan, J.:

"A great many charges were refused to the defendant, but they are not incorporated in the bill of exceptions, and the action of the court in refusing them cannot be reviewed by this court. It is quite an error to suppose, as seems to have been the case here, that the indorsement 'given' or 'refused,' with signature of the trial judge, on charges requested, makes them a part of the record for this court. They can be presented here only by incorporation in the bill of exceptions."

In a late case, North Birmingham Lumber Co. v. Sims & White, 157 Ala. 595, 600, 48 So. 84, 85, it is said:

"The seventh ground of error is in this language: 'The court erred in giving each of the written charges asked by plaintiffs, and which charges are copied, but not numbered, on page 9 of this transcript. Each one of them separately are assigned as

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