Rainey v. Ridgeway

• Decision Date: 07 May 1907
• Parties: RAINEY v. RIDGWAY ET AL.
• Court: Alabama Supreme Court

43 So. 843

151 Ala. 532

RAINEY v. RIDGWAY ET AL.

Supreme Court of Alabama

May 7, 1907

Appeal from Probate Court, Tallapoosa County; James W. Strother Special Judge.

Action between E. B. Rainey and Ellen Ridgway and others. From a judgment for the latter, the former appeals. Affirmed.

George A. Sorrell and L. B. Rainey, for appellant.

Lackey & Bridges, for appellees.

DOWDELL J.

This cause was heard before Hon. James W. Strother, special judge of probate appointed for that purpose; the judge of probate of Tallapoosa county being disqualified to hear the cause. Motion is made to strike from the transcript what purports to be a bill of exceptions, and this motion is now submitted for our consideration upon an agreed statement of facts. It appears from such agreed statement of facts that the bill was signed by the special probate judge after the expiration of the time fixed by the statute (section 465 of the Code of 1896), but within the time of the order of the special judge granting an extension of the time for the signing of the bill. It further appears from such agreed statement of facts that such order of extension was made by the special judge beyond the limits of Tallapoosa county and in the city of Montgomery.

The first contention of the appellant is that this evidence is incompetent, for the reason that it is an attempt to contradict the record, which can never be done by parol evidence. This contention is without merit. The question is not one of an attempt to contradict the record, but it goes to the denial of the existence of a record. A bill of exceptions never becomes a part of the record until it is legally signed by the presiding judge, or, in case of his refusal to sign, it has been established as provided by law. In the absence of a compliance with the requirements of the statutes as to the signing or establishment of a bill of exceptions, a mere incorporation of such bill in the transcript does not constitute it a record. Probate judges in this state are elected for each county, and, in the the absence of any statute providing otherwise, their judicial powers and functions are confined within the territorial limits of the county to which they are elected. The law is well settled that no public officer has authority to perform any official act outside of the territorial limits of his jurisdiction, unless such authority is given by statute. Mortgage Co. v. Peoples, 102 Ala. 241, 14 So. 656; Ex parte Davis, 95 Ala. 9, 11 So. 308; Horton v Elliott, 90 Ala. 480, 8 So. 103; Mechem on Public Officers, § 508. In Mortgage Co. v. Peoples, 102 Ala. 244, 14 So. 657, it was said by this court, speaking through Stone, C.J.: "The jurisdiction of an officer elected and appointed, is local. It is confined to the territorial area for which he is commissioned. Within that territorial area, whether large or small, he can perform official functions. Outside of it he is a private person having no official power or jurisdiction. An act done by him beyond the boundaries of his local jurisdiction, no matter how formal he may make it appear, is a sheer usurpation, having no official validity. And this is true of official trust, from the highest to the lowest." 1 Am. & Eng. Ency. Law (1st Ed.) 146, note 2; Share v. Anderson, 10 Am. Dec. 421, 7 Serg. & R. (Pa.) 43; ...