Hamrick v. Town of Albertville, 8 Div. 404.

• Decision Date: 12 April 1934
• Docket Number: 8 Div. 404.
• Citation: 228 Ala. 666,155 So. 87
• Parties: HAMRICK v. TOWN OF ALBERTVILLE.
• Court: Alabama Supreme Court

155 So. 87

228 Ala. 666

HAMRICK v. TOWN OF ALBERTVILLE.

8 Div. 404.

Supreme Court of Alabama

April 12, 1934

Rehearing Denied May 31, 1934.

Appeal from Circuit Court, Marshall County; E. P. Gay, Judge.

Proceeding by the Town of Albertville to fix an assessment against property of J. T. Hamrick for street improvement. From a judgment for plaintiff, defendant appeals.

Corrected and affirmed.

Claud D. Scruggs, of Guntersville, and E. O. McCord, of Gadsden for appellant.

Thos E. Orr, of Albertville, and Street & Bradford, of Guntersville, for appellee.

THOMAS Justice.

The submission was upon motions and the merits.

The judgment was of date of February 19, 1932, motion for a new trial overruled on March 4th thereafter, appeal taken March 30th, citation, and certificate of appeal given and filed in this court April 25, 1932. The bill of exceptions was signed by the trial judge on May 31st, and filed in the circuit court on September 20, 1932. The clerk of the circuit court certified to this court that the making of the voluminous transcript was delayed, due to the short time since that document was filed, and "due to holding of term of court at Albertville and at Guntersville"; and that it was "absolutely impossible for me (him) up to this time (May 11th, 1933) to get the record completed * * * for the call for this Division at the May call." The certificate of appeal of date of April 21 1932, was filed in this court April 25, 1932, and the transcript was filed here on January 16, 1934. The motion to dismiss, on other grounds than that of the delay in filing the transcript and perfecting the appeal, is of date of February 1, 1933. It was in response to this motion that the foregoing certificate of the clerk of the circuit court was filed in this court.

The appellant's counsel had notice that on January 26, 1933, motion to dismiss the appeal was to be made, and the same apparently was not ruled on at the time indicated or subsequent thereto.

The rules that obtain in such a matter are given expression in Supreme Court rules Nos. 41 and 42, page 1935, Code 1928, sections 6103, 6106, and 6107, Code; and the decisions applying the same, Porter v. Martin, 139 Ala. 318, 35 So. 1006; Southern R. Co. v. Abraham Bros., 161 Ala. 317, 49 So. 801; Blair v. Rutherford, 207 Ala. 709, 92 So. 919; Britton v. Bullen, 213 Ala. 659, 106 So. 138. The dismissal of an appeal by this court in such case-with the excuse for delay that is given-is discretionary under rule 42; Luther v. Luther, 211 Ala. 352, 100 So. 497.

The cause, being duly docketed in this court, was not discontinued. The motion to dismiss the appeal has been examined on the facts indicated, and is overruled. McCoy v. Wynn, 215 Ala. 172, 110 So. 129.

There is a motion to strike the bill of exceptions or certain portions thereof. The rule for incorporating in a bill of exceptions a document introduced on the trial and incorporated by reference is, that it must be so described in the bill of exceptions that the clerk, unaided by memory, can make no mistake in preparing and certifying to the transcript, or can, unaided by memory, readily and with certainty know what document or paper is referred to without room for mistake. Jones v. First Nat. Bank of Greensboro, 206 Ala. 203, 89 So. 437; Tennessee-Hermitage Nat. Bank v. Hagan, 218 Ala. 390, 393, 119 So. 4. As otherwise stated, it must so "describe the paper by its date, amount, parties, or other identifying features, as to leave no room for mistakes in the transcribing officer," whether he be the immediate or succeeding transcribing officer. Looney v. Bush, Minor, 413; Parsons v. Woodward, 73 Ala. 348. And cases of a violation of circuit court rule 32 are: Turner v. Thornton, 192 Ala. 98, 68 So. 813; Heath v. Lewis, 200 Ala. 509, 76 So. 451; Fuller v. Fair, 206 Ala. 654, 91 So. 591.

It is recited in this bill of exceptions:

"If there is any question about it being the same parties and the same subject matter, we will offer in evidence the file in this Court of the case which was formerly tried and the files in the present case, which will fully establish the identity of the parties and the identity of the subject matter. And then if they deny it further, we will offer proof of our contention.

"Thereupon Counsel for Defendant stated to the Court that defendant offered all the papers in both files and also the opinion of the Supreme Court, and Counsel for the Plaintiff thereupon said in open court:

"'The gentleman is entirely correct in stating that it is the same subject matter, and the gentleman is entirely correct in stating that it is the same parties, but where the gentleman is at fault is stating that it is entirely the same suit. In fact it is not the same suit, but it is entirely a different suit.'

"The Court overruled the motion and the defendant then and there duly excepted." (Italics supplied.)

It is further recited: "* * * We offer the records of the Circuit Court in case No. 2166, the entire record, including * * * all papers and records concerning the matter, and we offer each separately and severally. And * * * the defendant again offered in evidence the transcript filed on December 17th, 1927, in the case of the Town of Albertville against Hamrick, being case No. 2166 heretofore set out in this bill of exceptions as evidence on the written motion of the defendant."

This evidence was offered on defendant's motion to require the payment of costs of the first suit, before procedure for reassessment. The court overruled defendant's motion, and to this action defendant duly excepted. In the ruling of the trial court on the introduction of this evidence-the introduction of the transcript to this court in cause No. 2166-there was no error. There could be no mistake in its incorporation as a part of this bill of exceptions thus described. Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448.

The description of the other documents to the effect that "defendant offered all the papers in both files" was merely a general reference to the file. For the purpose of defendant's motion to require payment of costs, this description as to the offer as evidence presented was definite and not within the rule. Jones v. First Nat. Bank of Greensboro, 206 Ala. 203, 89 So. 437. The trial court had judicial knowledge of these records and proceedings. Nashville, Chattanooga & St. Louis Railway v. Crosby, 194 Ala. 338, 350, 70 So. 7.

The defendant then offered in evidence, with other documents, the contract of the city with the engineer B. J. Penter, recited as being "heretofore set out in this bill of exceptions," and "the minutes of the Town Council dated August 16th, 1926, and August 17th, 1926, and of June 1st, 1927, of June 28th, 1927, that of July 1st, and July 8th, 1927." The first page of this transcript setting out "the transcript of the proceedings before the Town Council" shows there were before the trial court "copies of the plans, specifications, profile sheets, blue prints and all of the engineering data covering said work of construction," together with the contract with the contractor, and some of these documents are not found to be contained in this record. As above indicated, the record recited that the paper of date July 1, 1927, was offered in evidence; it does not appear in the record; that Plaintiff's Exhibit No. 1 was offered in evidence, and we do not find it in this record; that a certain "book" or "roll" of assessment and transcript sent up by the clerk of the court on former appeal do not appear.

This is sufficient to indicate that the record and transcript disclose there were documents offered in evidence on the last trial and offered on this trial which are not embraced in the bill of exceptions. We are of opinion, however, that the motion to strike the bill of exceptions should be, and is hereby, overruled.

The statute (section 7222, Code) provides that: "Whenever a suit has been dismissed or nonsuit taken * * * between the same parties * * * the party filing the new suit must also pay into court all costs incurred in the former suit, and, upon his failure to do so, the judge, upon motion of the defendant or any other party in interest shall dismiss said action," also provides that "upon good cause shown, the judge may permit the party to pay such costs within ten days and proceed with the suit," and has been held to extend, in cases at law, the rule that had obtained in equity. Ex parte State ex rel. Hillhouse (Hillhouse v. Hillhouse), 221 Ala. 678, 130 So. 206; Jordan v. Jordan, 175 Ala. 640, 57 So. 436; Ex parte Apperson, 217 Ala. 176, 115 So. 226. It is declared, however, that such discretion as to good cause for permitting costs to be paid in former suits, etc., is not unconditional or unrevisable. Ex parte Canada Life Assur. Co. (Choate v. Canada Life Assur. Co.), 217 Ala. 210, 115 So. 244. The subject of parties was the subject of consideration in Roberts v. Bright, 222 Ala. 677, 133 So. 907.

The ruling of denial of the motion to require payment of adjudged costs incurred on former suit and appeal is fully indicated in the final judgment from which the appeal is taken. The record proper shows that motion was made in writing, and on appeal became a part of the record proper, and that it is not necessary for an exception to be reserved to present the ruling for review. Section 9459, Codes 1928 and 1923; National Surety Co. v. O'Connell, 202 Ala. 684 81 So. 660; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; King v. Scott, 217 Ala. 511, 116 So. 681; Thomas v. Carter, 218 Ala. 55, 117 So. 634; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Shepherd v. Clements, 224 Ala. 1, 141...