Wood & Pritchard v. McClure

• Decision Date: 24 May 1923
• Docket Number: 6 Div. 854.
• Citation: 209 Ala. 523,96 So. 577
• Court: Alabama Supreme Court
• Parties: WOOD & PRITCHARD v. MCCLURE.

96 So. 577

209 Ala. 523

WOOD & PRITCHARD v. MCCLURE.

6 Div. 854.

Supreme Court of Alabama

May 24, 1923

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action on the common counts by R. J. McClure against Wood &amp Pritchard. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 6, p. 449 Acts 1911. Affirmed.

Eugene H. Hawkins, of Birmingham, for appellants.

James H. Willis, of Birmingham, for appellee.

SAYRE J.

The trial in this case was had on the 21st and 22d days of November, 1921. These were days of the week preceding the call of the Sixth division in this court. On the authority of the act "to amend section 16 [Acts 1915, p. 812) of an act entitled 'An act to further prescribe and regulate the qualifications, number, designation, duties and powers of the circuit judges of the state and to provide for their election and appointment,' approved September 25 1915," it is insisted that the court was without authority to try civil causes at that time, and that its judgment is coram non judice. If this contention were to be disposed of upon consideration of the mere language of the amendatory act (Acts 1919, p. 275), it would be necessary to hold in agreement with the contention stated, for that language is explicit and mandatory to the effect that "during the week preceding" the call of the Sixth division "and during the first week" of that call in this court, "no civil causes shall be tried in the law division" of the circuit court of Jefferson, and while the parties agreed to a trial at that time, consent cannot confer a jurisdiction forbidden by law. When the law prescribes time and place, time and place are as essential elements of jurisdiction as subject-matter and parties. Ex parte Branch, 63 Ala. 383; Davis v. State, 46 Ala. 80; Garlick v. Dunn, 42 Ala. 404; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954. Unavoidably then must be considered the insistence that the amendatory act referred to is unconstitutional and void in so far as it undertakes to provide that no causes shall be set or tried during the weeks mentioned for the reason that the title of that act gives no notice of the provision in question. The real title of the amendatory act is section 16 of the original act, and, as heretofore held by this court, "an amendment by reference to the number of a section in an act must be confined to matters which are germane to, suggested by, and supplemental to, the subject of that section." Ex parte Cowert, 92 Ala. 94, 9 So. 225; Ferguson v. Commissioners' Court, 187 Ala. 645, 65 So. 1028. Section 16 is as follows: "Civil cases requiring juries or witnesses need not be set for trial during Christmas week. Any judge shall, whenever he deems it necessary, call on the chief justice of the Supreme Court to assign one or more judges to relieve the judges who need assistance in clearing the dockets, civil and criminal."

In that title there is nothing to give notice of the provision of the amendatory act forbidding, in effect, the circuit court of Jefferson to try civil causes during the first, or preceding week, of the call of the Sixth division. It cannot be said, therefore, that the subject of the amendatory act is expressed in its title, as required by section 45 of the Constitution. It follows that, as to time, the trial court proceeded within the limits of its jurisdiction as fixed by the act of September 22, 1915, Acts, p. 707.

Appellants argue certain assignments of error which go to the proposition that plaintiff's response to their demand for a bill of particulars was insufficient. We have been unable to see that the bill furnished to defendants did not fairly apprise them of the items upon which plaintiff insisted at the trial. Morrisette v. Wood, 128 Ala. 505, 30 So. 630. But the question is not here for decision. There is no bill of exceptions, and the bill of particulars did not become, strictly speaking, a component of the pleadings, though it was filed with the clerk and is set out in the transcript. Hayes v. Woods, 72 Ala. 92; Cicotte v. Wayne Co., 44 Mich. 173, 6 N.W. 236; Star Brewery v. Farnsworth, 172 Ill. 247, 50 N.E. 228. As pointed out in Cicotte v. Wayne Co., supra, the bill of particulars has the effect of a pleading in that the proof is restricted by it; but it has never been supposed that the service of a bill of particulars constituted an amendment of the pleadings or that an amendment of the bill operated to change the issues in a cause. Nor will the recital of an exception in the judgment entry avail anything. Exceptions must be shown by a bill of exceptions. Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548.

This cause went to the jury on a number of the common counts, some of which sought to recover an item of $483; in others, the item of $17 was claimed. There was no error in overruling defendants' motion to strike the counts claiming the item of $17 as being below the jurisdiction of the circuit court nor in overruling the demurrers to these counts on the same ground. That these counts may be joined is declared by the statute. Code, § 5328. Defendants have nothing to complain of in that plaintiff sought to recover both items in one suit. The amount of the verdict, being in excess of $50, is conclusive that there was no evasion of the limitation of the jurisdiction of the circuit court as to...