Turner v. Thornton

• Citation: 68 So. 813,192 Ala. 98
• Decision Date: 22 April 1915
• Docket Number: 861
• Parties: TURNER v. THORNTON.
• Court: Supreme Court of Alabama

68 So. 813

192 Ala. 98

TURNER v. THORNTON.

No. 861

Supreme Court of Alabama

April 22, 1915

Rehearing Denied June 3, 1915

Appeal from Circuit Court, Washington County; John T. Lackland Judge.

Action by I.M. Turner against W.J. Thornton, for willful injury to a yoke of oxen. Judgment for defendant, and plaintiff appeals. Cause transferred from the Court of Appeals. Affirmed.

Granade & Granade, of Chatom, for appellant.

Joe M Pelham, Jr., of Chatom, for appellee.

THOMAS J.

This cause comes to us by transfer from the Court of Appeals.

The bill of exceptions, containing the stenographer's report of the trial in the circuit court, embraces 86 pages of the record. It would be fortunate if trial judges could see their way clear not to sign, as a bill of exceptions, the stenographic report of a trial, setting out the evidence in extenso.

Appellee's counsel insists, in his brief, that the bill of exceptions be stricken under rule 32, Code of 1907, p. 1526. Southern Railway Co. v. Jackson, 133 Ala. 384, 31 So. 988; Gassenheimer Paper Co. v. Marietta Paper Co., 127 Ala. 183, 28 So. 564; Hester v. Cantrell, 169 Ala 490, 53 So. 1009. In the preparation of the bill of exceptions, the evidence advanced, and its tendencies, should be set out in narrative form. The provision of the rule that bills of exceptions should contain a statement of the testimony in extenso, when the general affirmative charge has been asked, does not authorize the setting forth of the stenographic report of questions and answers, but only the statement of the testimony in narrative form. Woodward Iron Co. v. Herndon, 130 Ala. 364, 30 So. 370. Where the testimony could not be condensed into a general statement the bill will not be stricken. Boyett v. Stand. Chem. & Oil Co., 146 Ala. 554, 41 So. 756. When the bill of exceptions expressly purports to be, as this is, nothing other than the stenographic report of the trial below, it must be stricken on motion of appellee, is the rule declared by the Court of Appeals. Lucas v. Mays, 2 Ala.App. 497, 56 So. 593; Irby v. Kaigler, 6 Ala.App. 91, 60 So. 418; Owens v. State, 11 Ala.App. 309, 66 So. 852.

This court has expressly reserved the right to strike such bills of exceptions without motion or insistence of appellee. Hester v. Cantrell, supra; Gassenheimer Paper Co. v. Marietta Paper Co., supra. However willing the justice writing the opinion in any given case may be to disregard the violation of rule 32, and decide the case on the facts, the justice of Judge Pelham's statement in Irby v. Kaigler, supra, must be admitted that "When once an exception...