Padgett v. Gulfport Fertilizer Co.

Decision Date19 November 1914
Docket Number117
Citation66 So. 866,11 Ala.App. 366
CourtAlabama Court of Appeals

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the Gulfport Fertilizer Company against H.W. Padgett. From a judgment for plaintiff, defendant appeals. Affirmed.

J. Blocker Thornton and Carl McMahon, both of Mobile, for appellant.

Gregory L. & H.T. Smith, of Mobile, for appellee.


At common law, prior to the enactment of the statute of Westminster (St. 13 Ed. I, c. 3), the only errors reviewable on a writ of error were such as were apparent on the face of the record proper, which consisted of the pleadings, process verdict, and judgment. Exceptions to the rulings of the court during the progress of the trial, based, as they were, on oral or parol matters, formed no part of the record, and could not therefore be reviewed. With a view of remedying this condition and of providing a means for such review in civil cases, the English statute cited was passed, which is the origin of bills of exceptions, whose functions have now been extended in this and other jurisdictions to criminal cases also. 3 Ency.Pl. & Pr. 373; 2 Mayf.Dig. 480; Code, § 3018, and citations there.

A bill of exceptions may, consequently, be defined as a "a formal statement in writing of exceptions taken by a party on the trial to a ruling, decision, charge, or opinion of the trial judge, setting out the proceedings on the trial, the acts and rulings of the trial judge alleged to be erroneous the objections and exceptions taken thereto, together with the grounds therefor, and authenticated by the signature of the trial judge." Ency. supra; 3 Cyc. 26, 27; Code, § 3018, and citations.

Its character as a record and its verity as such comes from the fact of its approval by the trial judge, which can be evidenced in no other way than by his signature thereto hence, under the common-law practice, documents that it was desired should be a part of the bill were required to be written out therein in full before the bill was signed and sealed, upon the theory that otherwise they could not be properly authenticated; annexation of such documents as exhibits, or a reference thereto elsewhere in the record, was insufficient. Ency. supra, 430, 435; 3 Cyc 26, 27.

Under modern practice, however, the rigor of these rules has been, to some extent, modified, and it is now generally permissible to omit copying into the bill itself the document that it is desired to incorporate, provided the bill, at the place where it is desired to insert the document, properly describes and identifies the document and contains there a direction to the clerk to so insert it when making out the transcript of the original. Code, § 3018, and cases cited; Ency. supra, 430, and cases cited; 3 Cyc. 26, 27. Such a bill is termed a skeleton bill, and the documents so referred to, and set out as a part of the bill in the transcript of it, become, for purposes of review on appeal, a part of the bill of exceptions. To have this effect, however, the documents so directed by the judge to be copied and incorporated into the transcript of the bill must, before the bill is signed, be so clearly referred to therein and be so definitely identified by their date, name of parties, amount, or other identifying features as, in the language of our Supreme Court, "to leave no room for mistake in the transcribing officer." Looney v. Bush, Minor, 413; Ency. supra; Code, § 3018, and cases cited. And it is held that it is not enough that it be so described that the clerk of the court serving at the time the case was tried could insert it without room for mistake, but it must be so described that a succeeding clerk could transcribe it without room for mistake. Parsons v. Woodward, 73 Ala. 348; Kyle v. Gadsden Land Co., 96 Ala. 376, 11 So. 478; Quigley v. Campbell, 12 Ala. 58; Pearce v. Clements, 73 Ala. 256; Decatur Branch Bank v. Mosely, 19 Ala. 222; Stodder v. Grant, 28 Ala. 416; Bradley v. Andress, 30 Ala. 80; Farmer v. Wilson, 34 Ala. 75; Garlington v. Jones, 37 Ala. 240; Tuskaloosa County v. Logan, 50 Ala. 503.

Under this practice, while the bill leaves the hands of the trial judge as a skeleton bill, containing merely a reference to and description of the documents, together with a direction, at appropriate places therein, to the clerk to insert, as "[Clerk, here insert]," yet, when the bill comes before the reviewing court, it comes transcribed in its completed form, with the insertions made as directed, so that the reviewing court is not required to look beyond its four corners to ascertain its contents.

In the present case, the bill omits setting out the documents--some 30 odd--and likewise omits any direction to the clerk to insert them in the bill, but seeks to make the documents a part of the bill by a statement in the bill that they are thereto attached, marked "Exhibit A," "Exhibit B," etc. In the transcript before us, at a place immediately following the bill, is what purports to be a transcript of these numerous documents so marked as exhibits. Motion is made by the appellee to strike them on two grounds, to wit: First, that under the law they cannot be made a part of the bill by attaching them to it merely as exhibits, but that it is necessary either that they be set out in the bill before it is signed, or that the bill before it is signed contain a direction to the clerk to insert them therein in making out the transcript, and that unless so inserted in pursuance of such direction, they are extraneous matter that cannot be considered as a part of the bill; second, that even if the practice of attaching them as exhibits is permissible, they are not described in the bill here with definiteness sufficient

for us to be able to tell that the documents called for by the bill are the same as those attached as exhibits.

Being of opinion that there is merit in the second proposition renders it unnecessary to consider the first, though in passing we wish to say at least with respect to it that, even if the law now permits documents to be made parts of bills of exceptions by attaching them merely as exhibits to the bill it is a method which is certainly not to be commended. A bill of exceptions is a judge-made record, gaining, as before said, its character from his approval, which must be verified by his signature. It is of the utmost importance that its integrity be jealously guarded, and that its certainty be cautiously preserved, for upon it rests, to a large extent, the law's protection for the most sacred of human rights with which it deals--life, liberty, and property. When documents are made part of the bill by being attached thereto as exhibits, it opens a wide door for fraud and mistake, for in such case there is nothing to prevent the detachment of such exhibits from the bill after it leaves the hands of the trial judge and the substitution of others for them, correspondingly marked "Exhibit A" or "Exhibit B," etc., before the clerk makes out the transcript, thereby occasioning a necessity for courts of review to resolve themselves into a jury and constantly engage in hearing evidence pro and con for the purpose of determining, with uncertainty at best whether or not a particular document that is copied into the transcript as an exhibit to the bill of exceptions is the real exhibit that was attached to the bill at the time it was signed--in other words, whether what purports to be the record in this respect is or is not the record. Without condemning in toto a practice which would lead to such results and which would impair to some extent the integrity and certainty of bills of exceptions, opening them to parol attack and entailing unnecessary burdens on the reviewing court, we wish to express our disapproval of it, and to suggest that it would be more in keeping with our idea of the aim of the law if the bill, when it reaches us, is complete within its four corners and furnishes no occasion to look beyond these for its contents. It is certainly inconvenient, to say the least, for us to do so and requires an unnecessary consumption of time, even when there is no dispute as to the correctness of the exhibit. By what we have said we do not mean to intimate that there has been any fraud practiced or attempted by counsel in the present case with respect to the exhibits, or otherwise. Their known high character is such as to furnish sufficient guaranty that such would never be done by them. The suggestions we have thrown out were merely for the purpose of indicating why as a general proposition we do not approve the method adopted here in preparing bills of exceptions. We are unwilling, however, at this time to commit ourselves to the broad doctrine, insisted upon by appellant in such first contention, to the effect that in no event is it permissible to make a document a part of a bill of exceptions by attaching it as an exhibit, because we are aware that sometimes maps or photographs or other like documents are introduced in evidence and made a part of the bill of exceptions, which the clerk in making a transcript of would have to get independent assistance and could not conveniently, to say the least, insert at an appropriate place in the transcript of the bill of exceptions, but might have to let the copy of it as made by some other person on transcript paper follow, as an exhibit, the bill in the transcript. Even then it seems to us that the exhibit should be identified by having the signature of the trial judge written on or across it at some place, and be so referred to in the bill of exceptions, which should also otherwise describe it as required in the cases cited. Hence, having thrown out a "beware" signal, we leave to future...

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