Ex parte Woodward Iron Co.

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 9.
• Citation: 211 Ala. 74,99 So. 97
• Parties: EX PARTE WOODWARD IRON CO.
• Court: Alabama Supreme Court

99 So. 97

211 Ala. 74

EX PARTE WOODWARD IRON CO.

6 Div. 9.

Supreme Court of Alabama

January 17, 1924

Rehearing Denied Feb. 27, 1924.

Certiorari to Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Original petition by the Woodward Iron Company for certiorari to the circuit court of Jefferson County to review the judgment and finding of that court in a proceeding, under the Workmen's Compensation Act (Laws 1919, p. 206), by Burrell and Lula Long Dowdell, father and mother of Eugene Dowdell, deceased, against the Woodward Iron Company. Writ granted; reversed and remanded.

Huey &amp Welch, of Bessemer, for petitioner.

William Vaughn and Louis Silberman, both of Birmingham, opposed.

THOMAS J.

The petition is for writ of certiorari.

The submission was on motion and on merits.

The motion was to strike the bill of exceptions from the transcript.

The several recent decisions defining the office of a bill of exceptions in aid of such petition are Woodward Iron Co v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte W. T Smith Lbr. Co., 206 Ala. 485, 90 So. 807; Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case) 207 Ala. 219 92 So. 458; Ex parte L. & N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Nunnally Co. (Crosby's Case) 209 Ala. 82, 95 So. 343; Ex parte Mt. Carmel Coal Co. (Miller's Case) 209 Ala. 519, 96 So. 626. See, also, State ex rel. Niessen v. Dist. Court of Ramsey County, 142 Minn. 335, 172 N.W. 133.

It will not be necessary to repeat that certiorari is the proper review, and not appeal; that the office of the two remedies is not identical; and only errors which are apparent on the record can be reviewed by certiorari. City of Birmingham v. Southern Bell T. & T. Co., 203 Ala. 251, 82 So. 519; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte W. T. Smith Lbr. Co., 206 Ala. 485,

90 So. 807; Ex parte A. Diniaco & Bros., 207 Ala. 685, 93 So. 388; Id., 208 Ala. 695, 93 So. 921; Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case) 207 Ala. 219, 92 So. 458; Ex parte Puritan Baking Co., 208 Ala. 373, 94 So. 347; Ex parte Nunnally Co. (Crosby's Case), 209 Ala. 82, 95 So. 343.

The motion to strike challenges the right to a bill of exceptions in aid of the petition for certiorari. When, therefore, does the necessity for and the right to a bill of exceptions in aid of the petition for certiorari exist? It has been declared that such is the necessity and right (1) when the insistence is that there was no evidence offered or admitted in support of the judge's "statement of facts and conclusions as determined" by him; that is, where there is any legal evidence to support the finding the same is conclusive on this court. Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case) 207 Ala. 219, 92 So. 458; Ex parte L. & N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Nunnally Co. (Crosby's Case) 209 Ala. 82, 95 So. 343; Ex parte Mt. Carmel Coal Co. (Miller's Case) 209 Ala. 519, 96 So. 626; Ex parte Shaw (Ala. Sup.) 97 So. 694. Or (2) when the facts recited in the "statement of facts and conclusions as determined" by the judge "are too meager or omissive fully to inform" the court of review "in respects of the entire circumstances having relation to the point in contest." Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case) 207 Ala. 219, 92 So. 458; Ex parte L. & N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Mt. Carmel Coal Co. (Miller's Case) 209 Ala. 519, 96 So. 626.

The findings of fact by the judge presiding at the trial and stated by him pursuant to requirements of the statute, and exhibited in the petition for certiorari, are:

"The deceased was 18 years old, had lived with his parents till August 1, 1922, and turned over his earnings to them. They bought his clothes, and gave him about $5 a month spending money. He left home about August 1, 1922, and was working for defendant as chainer in its coal mine at Mulga Ala.; also, was living in one of defendant's houses at Mulga with a girl, supporting her, but not claiming her to be his wife. The deceased had earned an average of $12.97 per week for many months prior to August 1, 1923 [the context shows the year was 1922], when he left his parents, and his average earnings while working for defendant were $13.48 per week. His father testified that deceased had contributed nothing to his support since leaving home, except one $10 he gave him at Ensley, Ala., about two weeks before he was killed. The plaintiff usually earned an

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