Cooley v. United States Saving & Loan Co. , 144 Ala. 538 ( 1905 )

DENSON, J.

This was an action of forcible entry and detainer commenced before a justice of the peace.

The defendants having complied with sections 2147 and 2148 of the Code, which provides for the removal of such actions from the justice of the peace, to the circuit court, the action was removed for trial to the circuit court. From a judgment rendered against the defendant in the. circuit court the defendant appealed to this court.

Section 2149 of the Code provides, that on the trial of all cases removed under the provisions of sections 2147 and 2148 of the Code, to the circuit court, the plaintiff must recover on the strength of his own title, as in a statutory action of ejectment,, etc.

The complaint was amended in the circuit court with respect to the description of the property sued for.

In an action of ejectment, where there is no disclaimer of possession, the only appropriate plea is the plea of not guilty. So in this case, the matters alleged in the special pleas, if available to the defendants, were available to them under the plea of the general issue and there was no necessity for, nor appropriateness in the special pleas. The court might properly have stricken them from the file, ex mero motu. — Bynum v. Gold, 106 Ala. 427; Lomb v. Pioneer Savings & Loan Co., 106 Ala. 591; Etowah Mining Co. v. Doc ex dem. Carlisle, 127 Ala. 663; Smith v. Cox, 115 Ala. 503; Richardson v. Stephenson. 114 Ala. 238.

However, no motion was made to strike special pleas 1 and 2, and they were not stricken, but a replication to them was filed by the plaintiff. The overruling of a demurrer to the replication is ithe only assignment of error with respect of the rulings of the. court on the pleadings. The record shows that after the- demurrer was overruled, by leave of the court- the replication was amended. It is further shown by the record that the demurrer to the replication, as amended, was overruled. The record fails to show the demurrer that was interposed to the replication as amended, and we cannot knoAV Avhat it Avas; cannot pass upon the ruling of the court overruling it.

After the amendment was made the replication was not the same that it Avas Avhen the court overruled the demurrer to it, and if the defendants desired the benefits of the demurrer, Avliich Avas filed previous to the amendment, against the replication as amended, they should have refiled them. — L. & N. R. R. Co. v. Woods, 105 Ala. 561; S. A. & M. Ry. v. Buford, 106 Ala. 303; West Union Tel. Co. v. Crawford, 110 Ala. 460.

The motion made to strike the bill of exceptions must-prevail. Section 10 of the Act regulating the practice in civil cases ¡tried in the circuit court of Jefferson county, approved February 29th, 1889, provides that bills of exceptions must be signed within sixty days after the day on Avliich the issue or issues of fact to which the bill of exceptions relates, unless the time for signing the bill is extended by agreement of parties, or by order of the presiding judge as now provided by law.

The trial ended on the 13th day of November, 1903; the bill Avas presented to the presiding judge on the 11th of January, 1904; he made an order extending the time in AAdiich the bill might be signed, thirty days, and on ¡the 30th day of January, 1904, the bill was signed. Excluding the day on Avhich the issue of fact were tried, to wit: the 13th day of November, 1903, and including the 13th day of January, 1904, the day on which the order of extension Avas made gives sixty-one days. Hence, the conclusion that the bill was not signed within the time when it might legally have been signed, and the motion to strike the bill of exceptions must be granted. The case of Loose v. Vogel, 80 Ala. 308, cited by appellee, seems to be conclusive of the correctness of the conclusion reached. — Richter v. Koopman & Gerdes, 131 Ala. 399; Allen v. Elliot, 67 Ala. 432; Rosson’s case, 92 Ala. 76.

Counsel for appellant realizing that the bill of exceptions was signed out of time, have in their brief asked the question, why cannot the court under the statement of the presiding judge near the close of the bill of exceptions, of the facts explanatory of his failure to enter the order of extension in time, take the bill of exceptions and treat it as an established bill of exceptions, if not an original one? The answer to the question is, that this court has no power or authority to taire any paper writing purporting to be a bill of exceptions and treat it as a bill of exceptions established until it has been established as a bill of exceptions in the manner provided by law.

Nothing in the statement of tike presiding judge embraced in the bill of exceptions can suspend the operation of the established rule that, a bill of exceptions not signed within the proper time will be stricken from the record on motion of the appellee.

With the bill of exceptions stricken from the record, there is no error prejudicial to the appellants, and the judgment of the circuit court will be affirmed.

Affirmed.

Haralson, Dowdell and Anderson, JJ., concurring.