Blair v. Greene , 246 Ala. 28 ( 1944 )

The appeal is from a verdict and judgment for the plaintiff in a suit brought under the Homicide Act, Section 314, Title 14, Code of 1940, by Brownie Brunell Greene, as administratrix of the estate of Claris Fred Greene, deceased, against Algernon Blair and F. G. Charlton, Sr.

The cause was submitted here on the merits and appellee's motion to strike from the record or transcript in said cause the document or statement purporting to be a transcription by the court reporter of his stenographic notes of the testimony and proceedings on the trial of said cause, and the document or paper therein, purporting to be a bill of exceptions.

The motion to strike the transcription by the court reporter of his stenographic notes is grounded upon the fact that it has not been in any wise approved, allowed or authenticated by the trial judge, as required by section 4 of the Act of the Legislature of 1943, page 423, Code 1940, Tit. 7, § 827(4). And the motion to strike the purported bill of exceptions is grounded upon the fact that the bills of exceptions were abolished by the Act of the Legislature of 1943, page 423, Code 1940, Tit. 7, § 827(1) et seq.

In the case of Spurlock v. Knight, 18 So. 2d 685, we held that section 4 of the legislative act, supra, requires that the transcription by the court reporter of his stenographic notes of the testimony and proceedings in the trial must be approved by the trial judge and filed with the clerk within ninety days after date of trial or date of trial court's ruling on motion for new trial. It was also ruled in that case that the Act of the Legislature of 1943, page 423, did not violate section 45 of the Constitution of Alabama of 1901. No constitutional question is raised in the instant case. The legislative act referred to abolished bills of exceptions in this jurisdiction. It necessarily follows that the motion to strike both papers or documents must be, and is, sustained.

We are not unmindful of appellant's insistence that the purported bill of exceptions should be taken and considered by this Court as a compliance with Section 3 of the Act involved. But section 3 has no field of operation unless the court reporter be deceased or for other good reason cannot transcribe the evidence in accordance with the provisions of section 1 of this Act.

The only assignments of error insisted upon in appellant's brief relate to the court's oral charge, written charges refused to the defendants, and motion for new trial. Obviously, such matters cannot be here reviewed in the absence of a compliance with the Act of the Legislature of 1943, page 423.

The cause is affirmed.

Affirmed.

GARDNER, C. J., and THOMAS, FOSTER, and STAKELY, JJ., concur.

On Rehearing.