Morningstar v. Stratton
| Decision Date | 04 April 1899 |
| Citation | 25 So. 573,121 Ala. 437 |
| Parties | MORNINGSTAR v. STRATTON. |
| Court | Alabama Supreme Court |
Appeal from city court of Mobile; O. J. Semmes, Judge.
Detinue by R. D. Stratton against Henry Morningstar, for the recovery of a bicycle and damages for its detention. The facts of the case as disclosed by the evidence are sufficiently stated in the opinion. The two charges requested by the defendant, and to the refusal to give each of which the defendant separately excepted, are copied in the opinion. There were verdict and judgment for the plaintiff, and defendant appeals. Affirmed.
The cause was tried by the court on April 23, 1898. At the same term of the court, on April 30, 1898, the defendant moved the court to grant him a new trial, upon the grounds that the verdict was contrary to the law and the evidence in the case and that the court erred in refusing the charges requested by the defendant. On that day, on April 30, 1898, on motion of the defendant, the motion for a new trial was specially continued to a special adjourned term of the city court which was to commence on the 3d of May, 1898, during a regular day of the special adjourned May term, and the motion for the new trial was overruled, to which ruling the defendant separately excepted. On April 30, 1898, which was a regular day of the term at which the judgment in favor of the plaintiff was rendered, the court made an order granting the defendant 30 days within which to present and have signed a bill of exceptions. On May 3, 1898, the day of the adjourned term on which the motion for a new trial was overruled, the court made an order granting to the defendant 28 days in which to file a bill of exceptions. On May 27, 1898, the court made an order as follows: "For good and sufficient reasons it is ordered that the time for filing the bill of exceptions in this case, both as to the trial and the motion for a new trial, be extended 20 days." An order signed by the judge and bearing date June 15, 1898, was made extending the time for preparing and signing the bill of exceptions 60 days longer than that heretofore ordered. Attached to this order was a statement signed by the judge, that on June 15th the counsel for the defendant asked him to extend the time within which to present a bill of exceptions, and that he told him he would do so, but the written order was not presented until June 29th, when he signed it as of June 15th. On August 8, 1898, the judge made an order extending the time for the preparing and presenting of the bill of exceptions to the 1st day of October, 1898. The bill of exceptions was presented to and signed by the judge on September 13, 1898. In this court the appellees made a motion to disallow and strike from the record the bill of exceptions in the cause, upon the ground that the other of the judge of the said court, signed on June 29, 1898, was signed after the expiration of the time for signing said bill as allowed by the next preceding order; and that, therefore, all subsequent orders were void and of no effect.
Chas. L. Bromberg, Jr., for appellant.
McIntosh & Rich, for appellee.
Action in detinue by R. D. Stratton, the appellee, against Henry Morningstar, the appellant; commenced before a justice of the peace for the recovery of a bicycle with damages for its detention. Judgment having been rendered against the defendant, the cause was appealed by him to the city court of Mobile, where it was tried de novo, with similar result, and from the judgment of that court defendant appeals to this court.
1. The extension of time beyond the term at which a case is tried, for the signing of a bill of exceptions-whether by agreement of the parties under section 616 of the Code; or, by the court in term time, under section 617; or, when signed in vacation by agreement of parties under section 618; or by the judge in vacation for further extension under section 619,-must be evidenced by writing, and never allowed to rest in parol.
When the court under section 617, in term time fixes a time within which a bill of exceptions may be signed-nothing appearing in the order to the contrary-the time fixed begins to run from the adjournment of the term.
When further extension is made under the provisions of section 619, and nothing appears in the agreement of the parties or the order of the judge therefor, to the contrary, the extended time begins to run from the expiration of the time fixed by the previous agreement or order for extension of time.
All orders by the judge, and agreements of parties or their counsel for extension of time under the provisions of either of said sections of the Code, should bear their true date, and never be antedated.
By calculation of time under the above rules, the bill of exceptions signed in this case, was signed in time,...
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