Fidelity Mutual Life Ins. v. Batson , 136 Ala. 330 ( 1902 )

DOWDELL, J.

— Tlie plaintiff’s replication No. 3 to defendant’s 4th plea does not deny the facts as alleged in said plea, but is evasive in its statements. Without denying that the note described in said plea was given for the first premium, or as alleged in the plea, the replication avers that the note “is not the property of the defendant, has never been the property of the defendant, and was not given to the defendant in payment of said first premium in violation of any instructions, rule or contract of said company, but said first payment was made to the authorized agent of said company,” etc. The plea avers that the first or initial premium was not in fact paid by the assured, Batson, but instead thereof, he gave his note therefor payable to Williams, who was the defendant’s agent, at thirty’' days, and that the note was never paid but was dishonored at maturity and payment was refused, which under the contract of insurance avoided the policy. Under the facts averred in the plea, the defendant was the beneficiary of the note, and Williams held the same as its trustee. The statements, therefore, in the replication as to the defendant’s ownership of the note, the facts stated in the plea not being denied, can be regarded as nothing more than the conclusion of the pleader. The replication as an answer to the plea was had in other respects, but the defect pointed out was sufficient to condemn it on the demurrer interposed by the defendant. The demurrer should have been sustained, and the court erred in overruling it.

The record shows that the trial was had on the 20th day of September, the hill of exceptions in the transcript was signed on the 25th day of November, which was more than sixty days after the trial, and there was no order of the court, nor agreement of counsel for extension of the time for signing. The act establishing the citv court of Bessemer, approved February 28th, .,1901 (Session Acts 1900-1901, p. 1854), provides, that bills of exceptions must be signed within sixty days after the trial. The rule is well settled by decisions of this court, that the bill of exceptions, unless signed in pursuance of the requirements of the statute, cannot be looked to for any purpose. The assignments of error, therefore, which relate to the bill of exceptions cannot be considered.

For the error pointed out in overruling the demurrer to the 3d replication, the judgment of the court will be reversed and the cause remanded.