Finney v. Sullivan

On Motion to Establish Bill of Exceptions. The judgment from which the appeal is taken was entered on September 17, 1925. On December 11, 1925, a purported bill of exceptions was presented to the Presiding Judge. It is admitted that this was not a correct bill of exceptions, and the court extended the time for the presentation of a correct bill of exceptions to be signed during the February term of court at Huntsville, which, by agreement of all parties, extended the time to March 7, 1926. Appellant did not present the bill within the time agreed upon, but did present a bill on or about April 17, 1926. Plaintiff refused to agree to a further extension of time. The Presiding Judge certifies to this fact, and, further, that the bill was still incomplete and refused to sign; hence the motion to establish here.

We have carefully considered the motion and the evidence offered, together with the certificate of the trial judge, and bearing in mind that to entitle the appellant to establish a bill of exceptions, under Code 1923, § 6435, this court must believe that the trial judge, who refused to sign the bill as presented, was guilty of a "high misdemeanor in office," we are unanimously of the opinion that the appellant's motion to establish the bill of exceptions should be denied.

The Presiding Judge and SAMFORD, J., are of the opinion that the appellant has not within the time prescribed presented to the trial judge a true and correct bill of exceptions with the point of decision and facts truly stated, as is required by statute. Fries v. White Lead Color Works, 18 Ala. App. 80,89 So. 842. RICE, J., bases his concurrence upon the fact, and with this conclusion SAMFORD, J., concurs, that the bill of exceptions, not having been presented until after the adjournment of the court at Huntsville, was not presented in time. The motion is denied.

On the Merits. Affirmed on the record.