Louisville & N. R. Co. v. Malone

• Decision Date: 14 December 1897
• Citation: 116 Ala. 600,22 So. 897
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. MALONE.

22 So. 897

116 Ala. 600

LOUISVILLE & N. R. CO. v. MALONE.

Supreme Court of Alabama

December 14, 1897

Appeal from circuit court, Limestone county; Daniel W. Speake Special Judge.

Action by Matilda Malone against the Louisville & Nashville Railroad Company. From a judgment entered on a verdict for plaintiff defendant appeals. Affirmed.

This action was brought on March 8, 1895, to recover damages for the alleged negligent setting fire to and burning of plaintiff's house and other property by defendant. The material facts of the case are substantially the same as disclosed on the former appeal; and special reference is here made to the report of such appeal, as contained in 109 Ala 509, 20 So. 33. There were verdict and judgment for plaintiff. Defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos G. Jones, for appellant.

W. T. Sanders and McClellan & McClellan, for appellee.

COLEMAN J.

The first question presented arises upon the motion of appellee to strike the bill of exceptions from the record. The motion is predicated upon the following facts: The trial terminated on the 10th of October, 1896. On that day the court made an order allowing 60 days from date within which the defendant might prepare a bill of exceptions. Before the expiration of the time, the court extended the time 40 additional days. On the 7th of January, 1897, the judge signed an instrument purporting to be the bill of exceptions. Instead of filing the instrument in court, it was sent to counsel for appellee, who retained it until February 9th, and, with many objections and suggestions, returned it to the judge. After this time, the judge made alterations in the instrument which had been signed as a bill of exceptions. There had been no order granting further time after the expiration of the 40 days. It is clearly the law that a judge has no authority to sign a bill of exceptions in vacation after the expiration of the time fixed by the last previous order, nor under any circumstances after 6 months. Act Feb. 22, 1887 (Acts 1886-87, p. 126); Beal v. State, 99 Ala. 234, 13 So. 783; Morris v. Brannen, 103 Ala. 602, 15 So. 865; Furnace Co. v. Glasscock, 86 Ala. 244, 6 So. 430. Section 2760 of the Code of 1886 provides that, when the bill of exceptions is signed by the presiding judge, it "thereby becomes a part of the record." We then have the case of a bill of exceptions signed by the judge on the 7th of January, 1897, a day within the time fixed by the order. Instead of filing the bill in court, the judge incloses it to counsel for the appellee, writing them to the effect that, notwithstanding having signed it, he would make such subsequent changes as he might deem proper to be made. The bill of exceptions, with objections, was returned to the judge by appellee's counsel on the 9th of February, 1897, and some time between that day and the 12th of April the alterations were made. More than six months had elapsed before the bill was filed with the clerk. It is a common principle of law that parol evidence is inadmissible to contradict, add to, or vary a record; and, by repeated decisions of this court, the rule has applied to bills of exceptions, after they had been signed and sealed by the judge. It is equally well settled that after the judge has signed the bill of exceptions, and court has adjourned, or the time allowed for signing the same has expired, it is beyond his power to alter, modify, or explain it. Chapman v. Holding, 54 Ala. 61; Pearce v. Clements, 73 Ala. 256; Rosson v. State, 92 Ala. 76, 9 So. 357. In the case of Cullum v. Casey, 1 Ala. 351, 355, it was declared that, where a court assumes to act in a particular cause when it had no power to sit in any cause, its acts are not judicial, and are void.

If it was an admitted fact that the bill of exceptions in the record was the same as that signed by the presiding judge on January 7th, and there was an attempt to correct or modify it in any way by parol, the decisions are conclusive that it could not be done. The question presented is whether parol evidence is admissible to show that the bill of exceptions after it became a part of the record, was altered, or that in fact it was signed at a time when the judge had no power to act. It would seem to be wholly useless to declare that, after a bill has been signed, a judge has no power to alter or modify it, and yet hold that a party is concluded from proving the alteration, or in holding that a judge has no authority to sign a bill of exceptions after a certain date, and yet hold that any date he may give to the bill of exceptions is conclusive of its truth. In the case of Kitchen v. Moye, 17 Ala. 394, in answer to a writ of certiorari, a transcript was sent up with a bill of exceptions bearing date as if signed in term time. The certificate of the clerk, however, showed that in fact it had been signed in vacation. The bill of exceptions was rejected, the court declaring that the judge had no authority to add to or vary a bill of exceptions in vacation. The rule which declares that parol evidence is inadmissible to vary or contradict a record does not prohibit the introduction of such evidence when the purpose is to show that a paper writing or instrument which purports to be a record in fact is not a record. Dyer v. Brogan, 70 Cal. 136, 11 P. 589; 20 Am. & Eng. Enc. Law, 517, note; 3 Phil. Ev. (Cowen & H. Notes) c. 1, pp. 317, 797, note 550; Starkie, Ev. (9th Ed.) p. 290, § 320. In the case of Lewis v. Town Council of Gainesville, 7 Ala. 85, it was held that, when the transcript from the commissioners' court discloses that the court had jurisdiction over the subject, the time when it held its session cannot be inquired into collaterally; but...