Hughes v. Albertville Mercantile Co.

• Decision Date: 17 February 1911
• Citation: 173 Ala. 559,56 So. 120
• Parties: HUGHES v. ALBERTVILLE MERCANTILE CO.
• Court: Alabama Supreme Court

56 So. 120

173 Ala. 559

HUGHES v. ALBERTVILLE MERCANTILE CO.

Supreme Court of Alabama

February 17, 1911

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action between J. W. Hughes and the Albertville Mercantile Company. From the judgment, J. W. Hughes appeals. On motion to establish a bill of exceptions. Granted.

Subsequently to the handing down of this decision, the case was transferred to the Court of Appeals for decision on the merits.

McClellan J., dissenting.

John A Lusk and E. W. Hawkins, for appellant.

ANDERSON J.

The preponderance of evidence shows that a correct bill of exceptions was presented by the movant to the presiding judge, who was no doubt actuated by an honest impression and good intentions, made a material but improper change in same before signing. Section 3021 of the Code of 1907 , provides for the establishment of a bill of exceptions when the judge fails or refuses to sign same.

We have heretofore held that in order to put the judge in default for a failure or refusal to sign, so as to enable the aggrieved party to establish one, it must appear that a correct bill was tendered. Bradberry v. State, 53 So. 266. On the other hand, we hold that, when a correct bill is presented, it is the duty of the judge to sign same as presented, and the signing of same, after improperly changing it, is not the signing of the bill of exceptions, but is, in effect, a failure or refusal which will enable the appellant to establish same under the statute.

Of course, if a judge should change the bill, whether properly so or not, and no action is taken to establish a proper one, and the one so signed is sent up and made a part of the record, the one so sent up will be looked to and considered by this court as the proper one, and it cannot be corrected or changed by resorting to extraneous matters. This rule has been repeatedly adhered to by this court in many cases, among which will be found the case of Turner v. White, 97 Ala. 545, 12 So. 601. It was there suggested, however, that if the bill, as signed by the judge, was not a correct one the appellant should have proceeded under the statute to establish a proper one--a course adopted by this movant, and the motion to establish the bill is hereby granted.

In the case of Gunter v. Pollack, 53 So. 1002, the motion to establish the bill of exceptions was overruled, for the reason that the proof showed that the one tendered the judge was not a correct one, in that it purported to contain all the evidence, when it did not in fact do so. The majority of the court did not deny the motion, upon the idea that appellant was precluded from establishing a true one, by the action of the judge in signing a paper, deemed by him as correct, but which was not in fact a correct bill of exceptions. The majority wrote no opinion in this case, and an examination of the opinion of Justice McCLELLAN will disclose the fact that he was not expressing the views of the court, but was giving his individual reasons for concurring, and which said views were not then and are not now entertained by the court. We repeat that the changing of a correct bill of exceptions, so as to make it incorrect, notwithstanding the same is signed after the change, is, in effect, a failure or refusal to sign a correct bill, and gives the appellant the right to proceed under the statute to establish the true one.

DOWDELL, C.J., and SIMPSON, MAYFIELD, SAYRE, and SOMERVILLE, JJ., concur.

McCLELLAN J., (dissenting).

When the minute entry and the last paragraph of what purports to be a bill of exceptions, in the transcript, are read together, it appears that the judgment was entered on October 14, 1910, and that the bill was presented to the presiding judge on September 27, 1910, about 17 days before the judgment entry expressly fixes as the date on which the judgment was entered. Since it appears that the court adjourned sine die on July 22, 1910, it seems to be (indeed, it must be, to justify the entertainment of the motion here involved), assumed that the date of the judgment entry is self-correcting.

In view of the exacting statutory requirements (Code, § 3019) with respect to presentation of bills of exceptions ( Edinburgh, etc., Co. v. Canterbury, 53 So. 823), the establishment of such a precedent may not ultimately prove to be safe or satisfactory. More important consequences than the one here wrought out may, upon occasion, argue against such an assumption, whereby the date of "judgment entered" is taken as different from that specifically fixed in the minute entry of the court. However, for the occasion only, the writer assumes, with the majority, that a bill was seasonably presented to the presiding judge. He altered the bill tendered him, and then signed it within the period provided by the statute. Code, § 3019.

The majority now rule, in response to the motion to establish the bill, that the signing of the bill, after its alteration, by the presiding judge, was not a signing in such sort as to deny to appellant the right to establish the bill under the statute (Code, § 3021), which, as here important, reads: "If the judge fail or refuse to sign a bill of exceptions, the point of decision and the facts being truly stated, he is guilty of a high misdemeanor in office; and the Supreme Court must receive such evidence of the fact as may be deemed by it satisfactory, and proceed to hear the cause as if the bill had been signed by the judge. * * *"

In Gunter v. Pollack (53 So. 1002), mentioned in the controlling opinion, the writer expressed the view that where the judge seasonably signs a bill of exceptions any inquiry into its correctness is wholly foreclosed. This conclusion is rested upon three (to his mind) well-established, main, legal propositions: First, that the ascertainment of what took place on the trial is, in nature, a judicial question, and is committed for determination, with necessary, though presently unimportant, exceptions, to the presiding judge. Code, § 3018; Etheridge v. Hall, 7 Port. (Ala.) 47, 53; Ex parte Nelson & Kelly, 62 Ala. 380; Weir v. Hoss, 6 Ala. 881; L. & N. R. R. v. Malone, 116 Ala. 600, 603, 22 So. 897; 3 Cyc. p. 31, and notes. Second, that the act of the presiding judge in seasonably signing a bill of exceptions constitutes the instrument so executed a part of the record of this court, and in consequence that it imports absolute verity, "to contradict, add to, or vary" which "parol evidence is inadmissible." L. & N. R. R. Co. v. Malone, 116 Ala. 600, 603, 22 So. 897; Ex parte Nelson & Kelly, 62 Ala. 376, 379, 380; Pearce v. Clements, 73 Ala. 256; Chapman v. Holding, 54 Ala. 61. Other authorities might be added. Third, that the failure or refusal, by the judge, to sign the bill as presented by the exceptant is not the condition contemplated by or expressed in the statute (section 3021); on the contrary, that condition is that the judge fail or refuse to sign "a bill of exceptions."

These propositions, among others, were discussed and some of the above-cited authorities were quoted in the opinion of the writer, in Gunter v. Pollack, supra. It follows from these propositions that the effort to show, as in this instance, that the bill as signed by the judge was incorrect should have been denied; that the evidence offered was inadmissible for the reasons stated and under the authorities cited to the first and second propositions, ante.

Diligent investigation of our reported cases has not discovered any decision here supporting the ruling made in the majority opinion. Only two decisions are therein cited, viz Bradberry v. State, 53 So. 266, and Turner v. White, 97 Ala. 545, 12 So. 601. Quotations from the opinion in the Bradberry Case will suffice to show the vital difference between the question there presented and decided, and that here involved: "A bill of exceptions was presented to the judge, who refused to sign same, because it was not correct, and, if it was not correct, he properly refused to sign same. It has been agreed that the one sought to be established is correct, and, as it differs from the one presented to the judge, the one so presented was not correct. " (Italics supplied.) Here the...