Hughes v. Albertville Mercantile Co.

Supreme Court of Alabama

Hughes v. Albertville Mercantile Co.

56 So. 120, 173 Ala. 559, 1911 Ala. LEXIS 311

CourtSupreme Court of Alabama

DecidedFebruary 7, 1911

StatusPublished

Cited by9 cases

This text of 56 So. 120 (Hughes v. Albertville Mercantile Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hughes v. Albertville Mercantile Co., 56 So. 120, 173 Ala. 559, 1911 Ala. LEXIS 311 (Ala. 1911).

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Opinions

ANDERSON, J.

The preponderance of evidence shows that a correct bill of exceptions was presented by the movant to the presiding judge, who was no doubt actuated by an honest impression and good intentions, made a material but improper change in same before signing. Section 3021 of the Code of 1907, provides for the establishment of a bill of exceptions when the judge fails or refuses to sign same.

We have heretofore held that in order to put the judge in default for a failure or refusal to sign, so as to enable the aggrieved party to establish one, it must appear that a correct bill was tendered. — Bradberry v. State, 168 Ala. 141, 53 South. 266. On the other hand, we hold that, when a correct bill is presented, it is the duty of the judge to sign same as presented, and the signing of same, after improperly changing it, is not the signing of the bill of exceptions, but is, in effect, a failure or refusal which will enable the appellant to establish same under the statute.

Of course, if a judge should change the bill, whether properly so or not, and no action is taken to establish a proper one, and the one so signed is sent up and made a part of the record, the one so sent up will be looked to and considered by this court as the proper one, and it cannot be corrected or changed by resorting to extraneous matters. This rule has been repeatedly adhered to by this court in many cases, among which will be found the case of Turner v. White, 97 Ala. 545, 12 South. 601. It was there suggested, however, that if [561]*561the bill, as signed by the judge, was not a correct one the appellant should have proceeded under the statute to establish a proper one — a course adopted by this movant, and the motion to establish the bill is hereby granted.

In the case of Gunter v. Pollack, 169 Ala. 591, 53 South. 1002, the motion to establish the bill of exceptions was overruled, for the reason that the proof showed that the one tendered the judge was not a correct one, in that it purported to contain all the evidence, when it did not in fact do so. The majority of the court did not deny the motion, upon the idea that appellant was precluded from establishing a true one, by the action of the judge in signing a paper, deemed by him as correct, but Avhich Avas not in fact a correct bill of exceptions. The majority wrote no opinion in this case, and an examination of the opinion of Justice McClellan will disclose the fact that he was not expressing the views of the court, but was giving his invidual reasons for concurring, and which said views were not then and are not now entertained by the court. We repeat that the changing of a correct bill of exceptions, so as to make it incorrect, notwithstanding the same is signed after the change, is, in effect, a failure or refusal to sign a correct bill, and gives the appellant the right to proceed under the statute to establish the true one.

Dowdell, C. J., and Simpson, Mayfield, Sayrio, and Somerville, JJ., concur.

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ANDERSON, J.

The preponderance of evidence shows that a correct bill of exceptions was presented by the movant to the presiding judge, who was no doubt actuated by an honest impression and good intentions, made a material but improper change in same before signing. Section 3021 of the Code of 1907, provides for the establishment of a bill of exceptions when the judge fails or refuses to sign same.

We have heretofore held that in order to put the judge in default for a failure or refusal to sign, so as to enable the aggrieved party to establish one, it must appear that a correct bill was tendered. — Bradberry v. State, 168 Ala. 141, 53 South. 266. On the other hand, we hold that, when a correct bill is presented, it is the duty of the judge to sign same as presented, and the signing of same, after improperly changing it, is not the signing of the bill of exceptions, but is, in effect, a failure or refusal which will enable the appellant to establish same under the statute.

Of course, if a judge should change the bill, whether properly so or not, and no action is taken to establish a proper one, and the one so signed is sent up and made a part of the record, the one so sent up will be looked to and considered by this court as the proper one, and it cannot be corrected or changed by resorting to extraneous matters. This rule has been repeatedly adhered to by this court in many cases, among which will be found the case of Turner v. White, 97 Ala. 545, 12 South. 601. It was there suggested, however, that if [561]*561the bill, as signed by the judge, was not a correct one the appellant should have proceeded under the statute to establish a proper one — a course adopted by this movant, and the motion to establish the bill is hereby granted.

In the case of Gunter v. Pollack, 169 Ala. 591, 53 South. 1002, the motion to establish the bill of exceptions was overruled, for the reason that the proof showed that the one tendered the judge was not a correct one, in that it purported to contain all the evidence, when it did not in fact do so. The majority of the court did not deny the motion, upon the idea that appellant was precluded from establishing a true one, by the action of the judge in signing a paper, deemed by him as correct, but Avhich Avas not in fact a correct bill of exceptions. The majority wrote no opinion in this case, and an examination of the opinion of Justice McClellan will disclose the fact that he was not expressing the views of the court, but was giving his invidual reasons for concurring, and which said views were not then and are not now entertained by the court. We repeat that the changing of a correct bill of exceptions, so as to make it incorrect, notwithstanding the same is signed after the change, is, in effect, a failure or refusal to sign a correct bill, and gives the appellant the right to proceed under the statute to establish the true one.

Dowdell, C. J., and Simpson, Mayfield, Sayrio, and Somerville, JJ., concur.

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56 So. 120, 173 Ala. 559, 1911 Ala. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-albertville-mercantile-co-ala-1911.

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