Box v. Southern Railway Co.

SOMERVILLE, J.

— Counsel for appellee call our attention, by supplemental brief, to the failure of the trial judge to indorse upon the bill of exceptions the date of its presentation to him. An examination of the bill discloses nothing from which the date of its presentation can be determined; but it affirmatively appears that the judgment was rendered on May 27, 1911, the motion for new1 trial overruled on June 2, 1911, and the bill of exceptions signed on Novemiber 3, 1911.

It is insisted that the bill of exceptions should be stricken by this court.

Under the decisions of this court the indorsement in question is a mandatory requirement of the statute (Code 1907, § 3019), without which there is in fact no bill of exceptions. — Edinburgh-American L. M. Co. v. Canterbury, 169 Ala. 444, 53 South. 823, and cases therein cited. Such a showing is jurisdictional, and without it this court cannot consider the assignments of error presented by the pseudo bill.

The effect of this rule is sought to be avoided by the filing of a certificate from the trial judge, to the effect that a bill was in fact presented to him by plaintiff’s counsel on August 21, 1911, upon which he then indorsed the fact and date of presentation; that this original bill was taken by counsel for defendant for examination, and, within the 90 days allowed for signing, by him returned to the judge, along with a new bill prepared by defendant’s counsel, and offered as a correct bill; that, after consultation with counsel for both parties, he signed the substitute thus offered; and that by inadvertence he omitted to indorse upon it the date of presentation.

It is manifest that our statute and decisions are designed to foreclose all inquiries dehors the record itself, and thus to avoid the embarrassments and uncertainties so often attendant thereon.

The unavailibility of this mode of supplying the omitted requirement was pointedly decided in Edinburgh American L. M. Co. v. Canterbury, supra; and, indeed, if available, it would not show that the transcript omits any part of the bill of exceptions on file in the court below.

The effect of section 3020 of the Code is, as pointed out in the case of Hartselle v. Wilhite, 3 Ala. App. 612, 57 South. 129, only to "forbid the striking of a bill of exceptions on the ground that it was not seasonably signed, except on motion of a party to the record. The seasonable presentation of the bill, to be evidenced by the bill itself, remains a jurisdictional fact, and therefore is not waived by the submission of the cause without a formal motion by the appellee to strike it from the file.

There being no legal bill of exceptions before us, and no error being assigned on the record proper, the judgnrent must be affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.