Morris v. Brannen

• Decision Date: 14 June 1894
• Citation: 15 So. 865,103 Ala. 602
• Parties: MORRIS v. BRANNEN ET AL.
• Court: Alabama Supreme Court

15 So. 865

103 Ala. 602

MORRIS v. BRANNEN ET AL.

Supreme Court of Alabama

June 14, 1894

Appeal from circuit court, Pike county; J. R. Tyson, Judge.

Action of ejectment by Claude Morris against Brannen & Sons and others. Judgment was rendered for defendants, and plaintiff appeals. A motion to strike out the bill of exceptions was granted, and the judgment affirmed.

D. A Baker and A. C. Worthy, for appellant.

Parks &amp Gamble, for appellees.

HARALSON J.

A motion is made to strike from the record, what purports to be a bill of exceptions in this case, because it does not appear to have been signed by the presiding judge within the time and as prescribed by law. The bill concludes with this language, "and the plaintiff presents this his bill of exceptions, and most respectfully asks that the court sign the same, within the time allowed," etc., and then follows the name, "J. R. Tyson, Judge." It bears no date, and there is nothing in the record to show when it was signed, whether in term time or afterwards. There is not shown to have been any consent or agreement of counsel in writing, for it is to be signed after the adjournment of court, but the judgment entry recites, that 30 days be allowed plaintiff to present a bill of exceptions. Section 2761 of the Code provides that "no bill of exceptions can be signed after the adjournment of the court, during which the exception was taken, unless by consent or agreement of counsel in writing, except in such cases as is otherwise provided." This has been the law of this state, since 1844, except under the latter act, the time within which counsel might agree for a bill to be signed in vacation, was limited to 10 days after the adjournment of the term of the court, at which the trial was had; and since the act of February 14, 1870 (Acts 1869-70, p. 99), that limitation of 10 days was taken out. The statute of 1844, has been many times before this court, and always with a uniform construction,-that it was not directory, but mandatory on the judges, to sign the bills, if at all, strictly within the terms of the statute, as to time, and that, unless the record showed affirmatively, that a bill of exceptions found in it was signed by the presiding judge, before the adjournment of the court, or within 10 days thereafter, by the written consent of the counsel engaged in the cause, it must be rejected, as forming no part of the record. Wood v Brown, 8 Ala. 563; Kitchen v. Moye, 17 Ala. 143; Haden v. Brown, 22 Ala. 572; Markland v. Ables, 81 Ala. 435, 2 So. 123. And in Maddox v. Broyles, 42 Ala. 436, it was held, that "where a bill is without date, and the record contains no evidence that it was signed in term time, or within ten days thereafter, pursuant to the written consent of the parties, for that purpose, it cannot be looked to by the appellate court as a part of the record, for any purpose." Bryant v. State, 30 Ala. 270; Rubber Co. v. Mitchell, 37 Ala. 314. On the 22d February, 1887, an act was approved (Acts 1886-87, p. 126), providing,...