Clark v. Jernigan

Clark v. Jernigan. Trover. (Decided Dec. 20th, 1906. 42 So. Rep. 833. 1. Bills of Exception; Time of Signing. — Where a bill of exceptions is not signed during the term at which the judgment is rendered, and no order is entered during the term extending the time for signing, it will be stricken on motion. 2. Costs; Taxation in Actions of Tort; County Court; Statutory Provision. — Under the act creating the county court of Coffee County (Loe. Acts, 1903, p. 399), the said court has jurisdiction concurrent with justices of the peace, and with the circuit court up to the sum of five hundred dollars, and its jurisdiction, in an action of tort for damages in the sum of thirty-five dollars, is that of a justice of the peace, and not of the circuit court, and Section 1320 of the Code of 1890 has no application to the taxing of the costs. Appeal from Coffee County Court. Heard before Hon. B. Dixon Armstrong, Special Judge. Action by D. W. Clark against Joe Jernigan. From a judgment for plaintiff, defendant appeals. Affirmed. This was an action for conversion of certain personal property, and the complaint asked for the sum of $35. The recovery was for $8, and all the costs of the proceedings were taxed against the defendant, although the costs exceeded the amount of damages in the judgment rendered. The defendant excepted to the taxing of all the costs against him, but insisted that only so much costs as equaled the damages assessed should be taxed, and that the other costs should be taxed, if at all, against the successful party; the judge presiding failing to certify that the damages awarded should have been greater. The other assignments of error relate to matters properly shown by bill of exceptions, and the bill of exceptions was stricken because not signed within the time allowed. Simmons & Carnley, for appellant. — Attorney’s fees are not an element of damage in trover and are not recoverable in any event unless specially claimed. — Ross v. Malone, 97 Ala. 530; Burkes v. Hubbard, 69 Ala. 379; Bototioell v. Parker, 124 Ala. 341; Birmingham Go. v. Tennessee Go., 127 Ala. 144. Charge 1 should have been given. — Berhman v. Newton, 103 Ala. 525. The court erred in taxing the cost in excess of the judgment against the defendant. — § 1326, Code 1896; 21 Ala. 579; 67 Ala. 246; 103 Ala. 197; 132 Ala. 596; 2nd Stewart, 469. Riley & Wilkerson, for appellee. — Counsel discuss questions decided but cite no authority. [MAJORITY — TYSON, J. —] TYSON, J. — The motion to strike the paper in the transcript purporting to be a bill of exceptions must be granted, for the reason that it is made to appear by its recitals that it Avas not signed at the term of the court at Avhich the judgment was rendered, and no order entered during the term extending the time for its signing is sho-Avn by the record. The act establishing the court by A\diich this cause was tried confers upon it concurrent jurisdiction Avith justices of the peace and the circuit court of the county in certain civil causes when the sum in controAwrsy does not exceed $500. — Loc. Acts 1903, p. 399. This action is trover-for the recovery of $35 as damages for the conversion of certain personal property. It is in the exercise of the jurisdiction conferred concurrent with justices of the peace, and not of the circuit court, that the court lias authority to try the case. — Sections 918 and 2662 of the Code of 1896. This being true, it is clear that section 1326 of the Code of 1896 has no application. Affirmed. Haralson, Simpson, and Denson, JJ., concur.