Carter v. Long Brothers

Carter v. Long Brothers. Motion to Htrike Bill of Exceptions from the Record. 1. Bill of exceptions; when signed in vacation must show order of court in writing. — Where a bill of exceptions was signed after the expiration of the term of the court at which the cause was tried, and there is nothing in the record to show any minute entry or that an order was made in writing by the court in term time fixing the time within which the bill of exceptions might be signed, it will be stricken from the file on motion — the statement made by the presiding judge and signed by him that the bill of exceptions was signed “within the time allowed by the court” not being siifficient to show that such order was in writing. Code, § § 616, 617. Appeal from Walker Circuit Court. Tried before Hon. James J. Banks. The facts appear in tlie opinion. T. L. Sowell, for appellant. Appling &McGuire, contra, ited, on motion to strike JI. cG If. If. If. Co. r. Worthington, 95 Ala. 398. [MAJORITY — DOWDELL, J.] DOWDELL, J. — The bill of exceptions in this case is signed in tlie following manner: “Signed this the 6th day of May, within tlie time allowed by the court. Jas. J. Banks, Judge.” The regular terms of the circuit court of Walker county begin on the third Mondays in February and August in each year and may continue five weeks. — (hide of 1896, § 90S. The bill of exceptions was signed after the expiration of the term of the court at which the case was tried. There is nothing in the record to show any agreement of counsel for the signing of the bill of exceptions in vacation, nor is there anything in the record showing that the court in term time fixed a time in which the bill of exceptions might be signed, unless it can be said that what is stated by the presiding judge in signing the bill of exceptions as above set •out shows an order made in term time. This statement as made by the judge does not even show' the year when flu1 same ivas signed, and it is but a statement by the presiding judge that time was allowed by the court. In tlie case of Morningstar v. Stratton, 25 So. Rep. 573, s. c. 121 Ala. 437, decided at the last term of this court, it was held that a memorial of the order made by the court, fixing a time for the signing of a bill of exceptions in vacation,, should be done in writing; that such an order was too important to rest in parol. There is nothing in the record to show any minute entry, or that an order was matte in writing by the court in term time, fixing the time within which the bill of exceptions might be signed, and the statement made by the presiding: judge and signed by him is not sufficient to show that such an order was in writing. — See Code of 1896, § § 616-617. Under the authority cited above, the motion of appellee to strike the bill of exceptions from the file must prevail. This disposes of the only assignment of error in the case, there being no assignments upon the record proper. The judgment of the circuit court is affirmed.