General Ordnance Co. v. Bowen

• Decision Date: 07 June 1923
• Docket Number: 5 Div. 837.
• Citation: 96 So. 753,209 Ala. 574
• Parties: GENERAL ORDNANCE CO. v. BOWEN.
• Court: Alabama Supreme Court

96 So. 753

209 Ala. 574

GENERAL ORDNANCE CO. v. BOWEN.

5 Div. 837.

Supreme Court of Alabama

June 7, 1923

Appeal from Circuit Court, Elmore County; B. K. McMorris, Judge.

Action by the General Ordnance Company against F. L. Bowen. From a judgment for defendant, plaintiff appeals. Affirmed.

Thomas G. Hilyer, of Tallassee, and Holloway & Hill and R. T. Rivers, all of Montgomery, for appellant.

Holley & Milner, of Wetumpka, for appellee.

GARDNER, J.

Suit by appellant against appellee upon promissory notes. There was verdict and judgment for defendant, the judgment being rendered on October 3, 1921. The appeal was taken September 5, 1922, by filing an appeal bond expressly disclosing by its recitals that the appeal is from the judgment rendered October 3, 1921. Nor do we discover anything in the record, including the citation of appeal and certificate of the clerk, in contradiction or qualification of this recital.

The bill of exceptions was presented September 11, 1922, and came too late. The seasonable presentation of the bill of exceptions is a jurisdictional fact, and the court ex mero motu takes notice thereof. Box v. Southern Ry. Co., 184 Ala. 598, 64 So. 69; Sharpe v. Hughes, 202 Ala. 510, 80 So. 798. The bill of exceptions cannot be looked to, therefore, in consideration of any rulings of the court upon the main trial.

It appears there was a motion for a new trial filed October 14, 1921, which was overruled August 29, 1922, and, had the appeal been prosecuted from the judgment overruling the motion for a new trial, the bill of exceptions would properly have been considered in reviewing such judgment. McMillan v. Skelton, 208 Ala. 693, 95 So. 148. But, as previously stated, the appeal is from the original judgment, and not from the judgment overruling the motion for a new trial. Under these circumstances, the cases of McMillan v. Skelton, supra, and Sloss-Sheffield S. & I. Co. v. Sampson, 204 Ala. 240, 85 So. 501, are conclusive to the effect that the bill of exceptions is not to be considered.

The only matters presented and argued on this appeal are those presented by the bill of exceptions, and it therefore results that the judgment must be affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and MILLER, JJ., concur.