Lambert v. Bowman-Moore Hat Co.

• Decision Date: 11 December 1930
• Docket Number: 5 Div. 78.
• Citation: 223 Ala. 1,136 So. 740
• Parties: LAMBERT v. BOWMAN-MOORE HAT CO.
• Court: Alabama Supreme Court

136 So. 740

223 Ala. 1

LAMBERT v. BOWMAN-MOORE HAT CO.

5 Div. 78.

Supreme Court of Alabama

December 11, 1930

Certiorari to Court of Appeals.

Petition of G. W. Lambert for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Lambert v. Bowman-Moore Hat Co., 136 So. 738.

Writ awarded.

See also Lambert v. Bowman-Moore Hat Co. (Ala. Sup. 5 Div. 95) 136 So. 741.

Huddleston & Glover, of Wetumpka, for petitioner.

Oakley W. Melton, of Wetumpka, for respondent.

SAYRE J.

This petition for certiorari to the Court of Appeals seeks to review an order of that court striking appellant's bill of exceptions. The facts, as we are able to gather them from the transcript of the record, are as follows:

The cause was tried before a jury February 28, 1927. No judgment was rendered until July 30, 1928, when the court rendered judgment for plaintiff, appellee. August 27, 1928, appellant filed his motion for a new trial. This motion was duly continued from time to time and was overruled January 26 1929. Appellant duly excepted. Appellant presented his bill of exceptions April 25, 1929, and it was approved by the trial judge May 25, 1929. In the interval between the trial and the rendition of judgment, that is, in the interval between February 28, 1927, and July 30, 1928, appellant moved the court to grant a new trial, which motion was brought to the attention of the court on March 30, 1927, and overruled June 25, 1927. It will be observed that on the last-mentioned date judgment had not been entered.

The statute, section 6433 of the Code, provides that: "Bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment is entered, and not afterwards," and further "presentation of the bill of exceptions within ninety days after the granting or refusing of a motion for a new trial shall be sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial."

It will be noted that the order of the Court of Appeals striking appellant's bill of exceptions is based upon the fact that it was not presented within ninety days of the ruling on the motion for new trial and the judgment rendered thereon and ignores the fact that another motion was made and ruled upon after judgment rendered, that is, after July 30, 1928,...