Massillon Engine & Thresher Co. v. Arnold

• Decision Date: 22 May 1902
• Citation: 32 So. 594,133 Ala. 368
• Court: Alabama Supreme Court
• Parties: MASSILLON ENGINE & THRESHER CO. v. ARNOLD ET AL. [1]

32 So. 594

133 Ala. 368

MASSILLON ENGINE & THRESHER CO. v. ARNOLD ET AL. ^[1]

Supreme Court of Alabama

May 22, 1902

Appeal from circuit court, Jackson county; A. H. Alston, Judge.

Attachment by J. J. Arnold & Co. against Morford & Whitehead. Claim by the Massillon Engine & Thresher Company to the attached property. From a judgment for plaintiff, claimant appeals. Affirmed.

J. J Arnold & Co., as plaintiff in attachment, sued out a writ of attachment against Morford & Whitehead, and caused the writ to be levied upon the property in controversy. Thereupon the Massillon Engine & Thresher Company made affidavit and bond and interposed a claim to said property; setting up the fact that the property levied upon under the writ of attachment was not the property of Morford & Whitehead, but was the property of the claimant. The verdict of the jury, as shown by the judgment entry, was as follows: "We, the jury find the issue in favor of the plaintiff for the property described, as per agreement: One sawmill, consisting of boiler, engine, and fixtures, levied on by the sheriff, and described in said levy, or the alternate value of said steam mill, which value is assessed by the jury at the sum of eight hundred and fifty dollars."

MVon L Thompson, for appellant.

J. E. Brown, for appellees.

TYSON J.

What purports to be a bill of exceptions in this record was signed by the presiding judge in vacation. Nothing appears in the record of the court below showing that any order was made by the court in term time authorizing a bill of exceptions to be signed after the adjournment of the court at which the trial was had. The recital at the close of what purports to be the bill of exceptions, "Tendered and approved this 15th day of April, 1901, within the time prescribed by the court in which a bill of exceptions may be signed," amounts to nothing more than the statement by the judge, and is insufficient to supply the omission of so important a requirement as the making of an order by the court. It cannot, therefore, be considered for any purpose. Dantzler v. Mill Co. (Ala.) 30 So. 674.

With the paper purporting to be a bill of exceptions eliminated all the assignments of error, except the thirteenth, are disposed of, since they relate exclusively to exceptions reserved upon the trial to the rulings of the court upon the admission and exclusion of testimony and the refusal of written charges. The thirteenth assignment is...