Wilder v. Bush

• Citation: 201 Ala. 21,75 So. 143
• Decision Date: 05 April 1917
• Docket Number: 6 Div. 541.
• Parties: WILDER et al. v. BUSH.
• Court: Supreme Court of Alabama

75 So. 143

201 Ala. 21

WILDER et al. v. BUSH.

6 Div. 541.

Supreme Court of Alabama

April 5, 1917

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by George E. Bush, as administrator, etc., against Samuel Wilder and another for damages for wrongfully altering changing, or falsifying the minute record of the circuit court of Jefferson county. From a judgment for plaintiff defendants appeal. Transferred from the Court of Appeals under Act of April 18, 1911, p. 449, § 6. Reversed and remanded.

The facts sufficiently appear. The following charges were refused to defendant:

(3) If the jury believe from the evidence that the change in the minutes of the court was made by the clerk of the court before they were signed by the judge at the end of the term you will find a verdict for defendant.

(5) If you believe the clerk changed or altered the minutes before they were signed, your verdict must be for defendant.

(7) I charge you that it is not necessary that the bench notes of the judge conform to the minutes of the court. The bench notes can be changed so as to make the record speak the truth before the minutes are signed by the presiding judge.

The questions propounded to Judge Smith are as follows:

Was that the order you intended to render in said cause at that time? Is said order correct? What judgment was rendered by you in said case at said time?

Ivey F Lewis, of Birmingham, for appellants.

Geo. E. Bush, of Birmingham, pro se.

THOMAS J.

This case was submitted in the Court of Appeals on the motion to dismiss the appeal, and on the merits.

The grounds of the motion were, in effect: (1) That the appeal was taken more than six months after the rendition of the judgment in said cause; and (2) that the appeal does not purport to have been taken from the judgment set out in said record.

The fact that the appeal bond describes the judgment as of date January 8, 1916, whereas the true date was February 8, 1916, is not necessarily fatal; other elements of the description show with reasonable certainty that it can be no other than the judgment from which the appeal was taken. Street v. Street, 113 Ala. 333, 21 So. 138; B.T. & S. Co. v. Currey, 175 Ala. 373, 57 So. 962, Ann.Cas. 1914D, 81; Strain v. Irwin (November term, 1914) 75 So. 151; Thompson v. Campbell, 52 Ala. 583. Timely motion having been made, the amendment necessary to perfect the appeal bond was properly allowed. Code 1907, §§ 2885, 2886.

The time within which an appeal may be taken to review the exceptions reserved on the trial, or on the motion for a new trial, has often been considered by our court. In Central of Georgia Ry. Co. v. Ashley, 160 Ala. 580, 49 So. 388, the question for decision was whether the bill of exceptions was perfected within the time allowed by the practice act of the city court of Montgomery. The court declared that what purported to be the bill of exceptions was not signed within 30 days after the trial of the cause, nor within a time fixed by any valid order of extension made as required by the practice act; that:

"While the bill of exceptions may not, for the reasons above stated, be looked to and considered in respect to rulings of the court on questions arising on the main trial, still it may be considered in reference to the action of the trial court in overruling the motion for a new trial."

This question was again discussed in Shipp v. Shelton, 193 Ala. 658, 69 So. 102, where the holding was that, if the bill of exceptions was not presented to the judge presiding at the trial within 90 days from date of trial, such purported bill of exceptions would not present for review the exceptions taken and allowed on the main trial; but that if presented more than 90 days from date of main trial, and yet within the 90-day period from date of the judgment on the motion for a new trial, only the questions presented for review by the judgment on the motion for a new trial will be considered.

In the instant case, the trial was had on February 8, 1916, and the motion for a new trial was overruled on March 11, 1916. The bill of exceptions was presented to the presiding judge on May 5, 1916, and was signed and approved by him on August 1, 1916; and the appeal was perfected on August 9, 1916. It is thus clear that six months had not elapsed from the date of the order overruling the motion for a new trial (Code, § 2868); that the bill of exceptions was tendered to the judge presiding at such trial within 90 days from the day on which the judgment on the main trial was entered; and that the same was approved and signed by such presiding judge within 90 days of the date it was presented to him. Code 1907, § 3019; Buck Creek Lumber Co. v. Nelson, 188 Ala. 243, 66 So. 476; Shipp v. Shelton, supra; Gen.Acts 1915, p. 711; Code, § 2868; Dickens v. Dickens, 174 Ala. 345, 56 So. 809; Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829.

The motion to dismiss the appeal is overruled.

The suit is for damages for wrongfully altering, changing, or falsifying, or causing to be wrongfully altered, changed, or falsified, the minute records of the circuit court of Jefferson county, Ala., appertaining to a certain cause, therein pending, between Samuel Wilder, plaintiff, and Sarah H. Bush, as executrix cum testamento annexo, etc., defendant. The alleged change of the minutes by the clerk of the court was not denied by defendant, but it was denied that there was any wrongful alteration or falsification of said minute record.

The death of said defendant, Sarah H. Bush, being suggested to the court, the court indorsed on his docket the memorandum: "*** Leave given to revive said suit against her administrator de bonis non when appointed." The clerk writing up the judgment used the words of the bench note--"her administrator de bonis non, etc." Thereafter at the request of the appellants, as attorneys and parties in the suit against the administratrix of the estate of J.W. Bush, deceased, the clerk of said court changed the word "her," where the same appeared in the judgment entry before the word "administrator," to the word "the." Said clerk, as a witness in this cause, said that he did not know when the change in the minute of the final judgment was made by him, but that it was before he issued the scire facias (which was dated September 19, 1914), and that it was witness' best judgment that the change was made on the day the scire facias was issued to Geo.E. Bush, successor in representation of J.W. Bush's estate.

Appellants, however, as witnesses in their own behalf, were positive that the change was made by the clerk of the court, on their calling his attention to the matter and on their request, "before the adjournment of the court and before the minutes of the court had been signed for that term" by the presiding judge; that the attention of the presiding judge was called to the change; and that he said he intended to give appellants the "order asked for."

From the evidence set out in the bill of exceptions, it appears that no fraud was intended, in the making of the amendment, however inadvertently it was done, or however unwise it may have been not to address a formal motion therefor to the judge presiding, rather than a suggestion to the clerk. Attorneys and officials cannot be too careful in such matters. While the judge is expected to read the minutes of his court before they are signed by him, yet he often leaves much to his clerk, in the writing of the formal judgments from his bench notes. The trial judge, as a witness for appellants, stated that he rendered the judgment asked for by the attorneys seeking the revivor, and that it was his recollection, and he had stated to counsel for appellee, that, when the motion for the revivor was granted, the two appellants (the plaintiff and his attorney in the court below) and the appellee (the attorney for the defendant in the court below) were present in open court. It is further clear from the record that the revivor was of a suit in the circuit court of Jefferson county, Ala., which court was presided over by Judge Smith at the time, and that the suit was No. 2988-A, in which Samuel Wilder was plaintiff and Sarah H. Bush, as executrix, etc., of the estate of J.W. Bush, deceased, was defendant; that, while said suit was still undetermined, the said Sarah H. Bush, the said personal representative and, as such, the defendant in said cause, died; that the revivor was sought against the personal representative of the said J.W. Bush, when appointed, and not against that of the said Sarah H. Bush; that thereafter, on September 17, 1914, letters of administration cum testamento annexo, de bonis non, on the estate of J.W. Bush, deceased, were issued to the appellee.

The record and other evidence clearly showed that no suit was pending against Sarah H. Bush, individually, at the time the revivor was granted by the court, but that there was a suit against her as the personal representative of J.W. Bush, deceased; that it was after her death, and before the...