Dial v. McKay

43 So. 218, 150 Ala. 118, 1907 Ala. LEXIS 342

• Court: Supreme Court of Alabama
• Decided: March 2, 1907
• Status: Published

Opinion

DOWDELL, J.

It appearsfrom the transcript in case that what purports to be a bill of exceptions was signed by the presiding judge after- the adjournment of the court at which the case was tried, and after the expiration of the time fixed by order of the court in term time, but within, the extension granted by the judge in vacation. Under section 17 of the act creating the Clay county court (Acts 1898, pp. 183, 184), the court, and not the judge, is authorized to grant extension of time for signing bills of exceptions. It follows that the motion to strike the bill of exceptions must prevail.

The plaintiff interposed demurrers to the first, second, third, sixth, and tenth pleas, which were overruled by the court. The fourth and eighth grounds of demurrer, which are mainly insisted on in argument, challenge the pleas as an attempt to vary a written contract by parol evidence. These grounds are evidently addressed to the sixth, seventh, and tenth pleas. This is a misconception of the pleas. These pleas go to the consideration of the note sued on, averring a want or failure of consideration of the same, and do not, as is supposed, attempt to alter or vary the terms of tbe note or contract sued on. Tlie other grounds of the demurrer are general.

Other assignments of error relate to rulings which can only be presented for review by a proper bill of exceptions, which, as we have seen above, has not been done in this ease.

Finding no error in the íecord, the judgment will be affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.