Southern Express Co. v. State

Alabama Court of Appeals

Southern Express Co. v. State

65 So. 844, 10 Ala. App. 655, 1914 Ala. App. LEXIS 259

CourtAlabama Court of Appeals

DecidedJune 3, 1914

StatusPublished

Cited by1 cases

This text of 65 So. 844 (Southern Express Co. v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Southern Express Co. v. State, 65 So. 844, 10 Ala. App. 655, 1914 Ala. App. LEXIS 259 (Ala. Ct. App. 1914).

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Opinion

WALKER, P. J.

The appeal is from a judgment rendered by the court sitting without a jury whereby certain liquors seized under a search warrant were forfeited and ordered to be destroyed, together with the-vessels in which the same were contained. The affidavit under Avhich the search warrant was issued stated-facts constituting a ground for issuing such a process-—Acts of Ala. 1909, pp. 63, 76, § 22, subd. 6a. The appellant interposed a verified claim to the liquors seized, by which it controverted the existence of the grounds [656]*656stated in the affidavit upon which the search warrant was issued. The judgment recites that:

“After hearing the evidence in said cause, it is the judgment of the court that the complainant, has established a ground for the issuance of such warrant.”

The record does not contain a bill of exceptions. There is set out in the transcript a written instrument signed by the attorneys of the respective parties, which .states that:

“It is agreed that the facts stated in the claim propounded by the Southern Express Company are true as therein stated.”

The record does not show that the case was tried upon this agreed statement of facts. No reference to it is made in the judgment. It is not made to appear that it was ever called to the attention of the trial court. A bill of exceptions is required to present for review on appeal the conclusion and judgment of the court on the evidence in a case tried without a jury. — Code, § 5361; Alosi v. Birmingham Waterworks Co., 1 Ala. App. 630, 55 South. 1029; Williams, Adm’r, v. Woodward Iron Co., 106 Ala. 254, 17 South. 517. The agreement of parties found in the transcript cannot be treated as a substitute for a bill of exceptions. Even if it showed more than this one does, it would not be a part of the record, as it lacks the authentication furnished by the signature of the presiding judge. In the absence of a bill of exceptions, properly signed by the presiding judge in the manner prescribed by statute, we cannot review the ruling made. — Clark v. McCrary, 80 Ala. 110; Southern Express Co. v. Black, 54 Ala. 177; Kerley v. Vann, 52 Ala. 7; Code, § 3018.

Affirmed.

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WALKER, P. J.

The appeal is from a judgment rendered by the court sitting without a jury whereby certain liquors seized under a search warrant were forfeited and ordered to be destroyed, together with the-vessels in which the same were contained. The affidavit under Avhich the search warrant was issued stated-facts constituting a ground for issuing such a process-—Acts of Ala. 1909, pp. 63, 76, § 22, subd. 6a. The appellant interposed a verified claim to the liquors seized, by which it controverted the existence of the grounds [656]*656stated in the affidavit upon which the search warrant was issued. The judgment recites that:

“After hearing the evidence in said cause, it is the judgment of the court that the complainant, has established a ground for the issuance of such warrant.”

The record does not contain a bill of exceptions. There is set out in the transcript a written instrument signed by the attorneys of the respective parties, which .states that:

“It is agreed that the facts stated in the claim propounded by the Southern Express Company are true as therein stated.”

The record does not show that the case was tried upon this agreed statement of facts. No reference to it is made in the judgment. It is not made to appear that it was ever called to the attention of the trial court. A bill of exceptions is required to present for review on appeal the conclusion and judgment of the court on the evidence in a case tried without a jury. — Code, § 5361; Alosi v. Birmingham Waterworks Co., 1 Ala. App. 630, 55 South. 1029; Williams, Adm’r, v. Woodward Iron Co., 106 Ala. 254, 17 South. 517. The agreement of parties found in the transcript cannot be treated as a substitute for a bill of exceptions. Even if it showed more than this one does, it would not be a part of the record, as it lacks the authentication furnished by the signature of the presiding judge. In the absence of a bill of exceptions, properly signed by the presiding judge in the manner prescribed by statute, we cannot review the ruling made. — Clark v. McCrary, 80 Ala. 110; Southern Express Co. v. Black, 54 Ala. 177; Kerley v. Vann, 52 Ala. 7; Code, § 3018.

Affirmed.

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65 So. 844, 10 Ala. App. 655, 1914 Ala. App. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-express-co-v-state-alactapp-1914.

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