Stearn v. Lehman

• Decision Date: 27 July 1887
• Citation: 2 So. 708,169 Ala. 441
• Parties: STEARN AND OTHERS v. LEHMAN AND OTHERS.
• Court: Alabama Supreme Court

2 So. 708

169 Ala. 441

STEARN AND OTHERS v. LEHMAN AND OTHERS.

Supreme Court of Alabama

July 27, 1887

Appeal from circuit court, Geneva county.

Motion in supreme court to set aside affirmance.

Upon motion of appellees, Lehman, Dun & Co., the bill of exceptions was struck from the record, because it did not appear that it was signed in term-time, or under any agreement in vacation; and the cause was affirmed. The appellants, Charles Stearn & Co., afterwards moved to set aside these orders, and in support thereof showed the following order, made at said court:

" Charles A. Stearn & Co. v. N. J Harris, Defendant, Lehman, Dun & Co., Claimants.

"Circuirt Court of Geneva County, Spring Term, 1877.

"By consent of plaintiffs and claimants, it is ordered by the court that the presiding judge of this court have thirty days to sign the bill of exceptions from the adjournment of this court."

And they also showed, by the certificate of the presiding judge, that the said bill of exceptions was signed within said thirty days. The said bill of exceptions concludes as follows: "And tender this as their bill of exceptions, and ask that the same be signed, sealed, and made a part of the record in this case, which is done. [Signed] J. M. CARMICHAEL, Presiding Judge."

H. D. Clayton, Jr., and W. D. Roberts, for the motion.

Troy, Tompkins & Loudon and Watts & Son, contra.

PER CURIAM.

Motion is made to set aside the affirmance of the judgment in this cause, rendered during the present term, and to vacate the order striking the bill of exceptions from the record. This order was made upon the ground that the bill of exceptions was without date, and was not shown by the record to have been signed within the time prescribed by the statute, which includes four classes of cases. It must appear either (1) that such bill was signed in term-time, before adjournment of the court during which the exceptions were taken; or (2) that it was signed within a certain time after adjournment, which was specified by written consent or agreement of counsel; or (3) within such time, not exceeding six months, as may have been fixed by order of the court, in term-time, on the application of either party; or (4) within such time, not exceeding six months, to which the judge in vacation may, for good cause have seen fit to extend the time fixed by such order made in term-time. The first two cases are provided for by section 3113, Code 1876, and, with some modifications, have long been recognized in this state. The last two are provided for by the recent act of the general assembly, approved February 22, 1887, entitled "An act to regulate the signing and allowance of bills of exceptions," (Acts 1886-87, p. 126.)

Under the Code provisions, (section 3113, supra,) it was uniformly held that a bill of exceptions would, on motion, be stricken from the record, unless it appeared on its face to have been signed within the time prescribed by the statute. Union India-Rubber Co. v. Mitchell, 37 Ala. 314; Bryant v. State, 36 Ala. 270; Rule of Practice, No. 30, Code 1876, p. 161. The same rule, for like...