National Pyrites & Copper Co. v. Williams

• Decision Date: 13 January 1921
• Docket Number: 6 Div. 11
• Citation: 89 So. 291,206 Ala. 4
• Court: Alabama Supreme Court
• Parties: NATIONAL PYRITES & COPPER CO. v. WILLIAMS.

89 So. 291

206 Ala. 4

NATIONAL PYRITES & COPPER CO. v. WILLIAMS.

6 Div. 11

Supreme Court of Alabama

January 13, 1921

Rehearing Denied April 14, 1921

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

Action by J.E. Williams against the National Pyrites & Copper Company, for damages for personal injury. Judgment for the plaintiff. Application for new trial was made, and, pending its hearing, the judge who presided at the original trial died, and the motion was heard by his successor in office and denied, and the defendant appeals. Affirmed.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, and Black & Harris, of Birmingham, for appellee.

BROWN, J.

It is the settled law in this state that a bill of exceptions derives its existence from the statute, and it cannot become such unless it is duly authenticated, and made a part of the record, as prescribed by the statute. Petty v. Dill, 53 Ala. 641; Edinburgh Co. v. Canterbury, 169 Ala. 444, 53 So. 823; King v. Hill, 163 Ala. 423, 51 So. 15; Smith v. State, 166 Ala. 24, 52 So. 396; Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843; Leeth v. Sawyer, 2 Ala.App. 311, 56 So. 757; Thacker v. City of Selma, 16 Ala.App. 345, 77 So. 939.

The presentation of a proposed bill of exceptions to the trial judge, or the filing thereof with the clerk, within 90 days from the rendition of the judgment or order sought to be reviewed, is a fact essential to the authority and jurisdiction of a justice of this court to establish such bill of exceptions and make it a part of the record, under the provisions of section 3022 of the Code of 1907, as amended by the act approved September 25, 1915 (Gen.Acts 1915, p. 816). Munson Steamship Co. v. Harrison, 200 Ala. 504, 76 So. 446; Sovereign Camp, W.O.W., v. Ward, 200 Ala. 19, 75 So. 331; Scott v. State, 16 Ala.App. 343, 77 So. 937.

The judgment in this case was rendered on June 24, 1919, and the proposed bill of exceptions does not appear to have been presented to the Honorable H.A. Sharpe, who presided on the trial, and was not filed with the clerk of the court until November 24, 1919, more than 90 days after the rendition of the judgment. Therefore, the paper incorporated in the record as a bill of exceptions cannot be looked to for the purpose of reviewing the ruling of the court presided over by Judge Sharpe on the trial. It is equally as clear that it cannot be looked to for the purpose of reviewing the ruling made by Judge Wilkinson on the motion for a new trial.

Where a bill of exceptions is presented to the trial judge within the time required by the statute, and he refuses to sign it, the jurisdiction and authority to establish the bill of exceptions under the provisions of section 3019 of the Code of 1907 resides in the Supreme Court, and not the justice thereof. Sovereign Camp, W.O.W., v. Ward, supra.

Moreover, had the bill of exceptions been duly authenticated, it fails to show that the evidence and proceedings of the court on the trial was in any way heard before the court presided over by Judge Wilkinson, in passing on the motion for new trial, and for aught that appears the only matter before the court was the motion itself.

Nothing being presented by the record proper for review, the judgment of the circuit court will be affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and GARDNER, JJ., concur.

On Rehearing.

MILLER J.

The appellant, in preparing this bill of exceptions, did, and naturally so, follow the beaten path blazed out by this court in Moneagle v. Livingston, 150 Ala. 562, 43 So. 840, in which it makes, in substance, this rule on appeals from judgments granting or refusing motion for new trial: On motion for new trial, it is not necessary to introduce on the hearing the substance of the evidence in the case, nor is it necessary for the bill of exceptions to recite that it was done, "the presumption being that it is in the breast of the court."

Judge Sharpe tried this case; afterwards he died, while this motion for...