Cooley v. United States Savings & Loan Ass'n

31 So. 521, 132 Ala. 590, 1901 Ala. LEXIS 213

• Court: Supreme Court of Alabama
• Decided: December 19, 1901
• Status: Published

Opinion

SHARPE, J.

— A motion here made to strike .the bill of exceptions from the record is based on the following facts appearing in the transcript: The case was tried at the Spring term, 1900, of the circuit court of Jefferson county. Orders of court were made for extending time for signing a bill of exceptions the last of which orders bears date as of July 23, 1900, and purports to extend the time thirty days from that date. By a writing dated' July 27, 1900, counsel for the parties, respectively, agreed to extend the time for signing to October 1, 1900. On October 1, 1900, the court made another order purporting to extend time to November 15,1900, and again on the last named day it made an- order purporting to further extend time, for thirty days. The bill of exceptions was signed on November 24, 1900.

The time fixed "by law for beginning the Fall term of that court is the fifth Monday after the third Monday in August.

Practice rule 30, Code, page 1200, is as follows: “In all circuit and inferior courts of common-law jurisdiction, bills of exceptions may be 'Signed by the presiding judge at any time during the term at which the trial or proceeding is had, or, by written consent of the parties, or their counsel, filed in the cause, at any time before the next succeeding term of such court, and not afterwards.” The latter clause of this rule is prohibitory. Under it the agreement of counsel was ineffective to extend the time for signing the bill of exceptions beyond the beginning of the Fall term of court. Thereafter the agreement was functus officio, the extension was cut off and the court was without power to' revive it at a later day. • ,

The statute empowers the judge in vacation to mate extensions but it intends his action shall be taken before the expiration of the time previously fixed SO' as to- preserve continuity of the period' during which there could have been a proper signing. This construction is as well applicable to section 619 of the Code as to the former statute which confined his authority in vacation to ex-' tending previous orders, as to which see Morris v. Brannon, 103 Ala. 602; Rosson v. State, 92 Ala. 76; Powell v. Sturdevant, 85 Ala. 245.

Section 620 of the Code provides, “The time allowed for signing a bill of exceptions must not be extended be-, yond six months from the adjournment of Court.” This-is a prohibition applicable to extensions whether made by order or agreement or by both. The prohibition in rule 30 applies only when signing is by consent. Both, the rule and statute have a field of operation wherein, they do not conflict. Therefore the statute does not-abrogate the rule but both must be given effect.

The motion to strike must prevail and the assignments of error being based alone on the bill of exceptions have: nothing to support them. Consequently the judgment will be affirmed.