McMullan v. Long
| Decision Date | 06 June 1905 |
| Citation | 39 So. 777 |
| Parties | MCMULLAN v. LONG. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.
"Not officially reported."
Action by J. Lee Long against C. H. McMullan. Judgment for plaintiff. Defendant appeals. Affirmed.
Lane & Crenshaw, for appellant.
Powell & Hamilton, for appellee.
The point is made by counsel for appellee that the paper in the record purporting to be a bill of exceptions cannot be considered, because signed by the judge in vacation; that no agreement in writing by counsel, or order of the court made in term time, pursuant to the requirements of the statute, extending the time for its signing, is shown by record. This paper purports to have been signed on the 15th day of June, 1904. This court judicially knows that the court convened on the 2d day of May, 1904, and that its session was limited to 3 weeks. The paper, therefore, on its face shows that it was signed by the judge after the adjournment of the court.
It is true it contains the statement that on motion of defendant it was ordered by the court that defendant be allowed 30 days after the adjournment of the court within which to prepare and tender his bill of exceptions. But this amounts to nothing more than a mere recital or statement by the judge that such an order was made, which, if made, is a matter of record in the trial court. The order nowhere appears in the transcript of the record of the lower court, or in the paper purporting to be the bill of exceptions. It has been frequently held by this court that such an order must appear in the record and that its omission cannot be supplied by a recital in the bill of exceptions. Dantzler v. Swift Creek Mill Co., 128 Ala. 410, 30 So. 674; Zion Fountain Lodge v. Folkes, 132 Ala. 609, 32 So. 485; Massillon E. & T. Co. v. Arnold, 133 Ala. 368, 32 So. 594; Peterman v. State, 139 Ala. 131, 36 So. 767. The paper purporting to be a bill of exceptions, therefore, cannot be considered.
Errors assigned being such as can only be presented by bill of exceptions, the judgment must be affirmed.
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