Hill v. State , 18 Ala. App. 10 ( 1920 )

After a careful consideration of the motion to strike the bill of exceptions in this case by the court sitting en banc, we are forced to the conclusion that we are without authority to do other than to hold that the motion must prevail. The insistence by counsel for state that the affidavits filed by appellants's counsel on this question cannot be considered is not well taken, for the reason that at the time of the submission of this case 15 days were allowed by this court to appellant's counsel in which to file the briefs and affidavits on the motion, and also to file briefs on the merits of the case, and within the stated time the affidavits and briefs were duly filed. We have given due consideration to all the affidavits filed in this connection, and, however reluctant this court may be to strike the bill of exceptions, we are of the opinion that it must be done, as it affirmatively appears that the bill of exceptions was not signed by the judge who tried the case within the 90 days allowed by the statute for that purpose.

Pretermitting the question raised relative to the presentation of the bill of exceptions to the trial judge, on the question of the signing of the bill, the indorsements thereon show that it was not signed by the judge until 10 months had elapsed from the date of its presentation. There are numerous decisions of the Supreme Court and this court which hold in line with the views expressed here; the latest case being Ed Wetzel v. Birmingham Southern Railroad Co., 204 Ala. 619,87 So. 96 (6 Div. 981).

We are free to state that the facts shown by the affidavits filed by the appellant's counsel are of such nature as to convince this court of the meritorious position taken by defendant's counsel on the facts involved here and our conclusion on the motion would no doubt have been different had we authority to hold otherwise. It would appear that appellants, when confronted by conditions as here detailed, should proceed under the statute (Code 1907, § 3022, as amended by Acts 1915, p. 816).

The bill of exceptions in this case is stricken on the ground that it was not signed by the trial judge within the time required by law (Code 1907, §§ 3019, 3020), and, there being no error apparent on the record, the judgement of the circuit court must be affirmed.

Affirmed.