Wood's Adm'r v. Brown

8 Ala. 563

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

COLLIER, C. J.

By the act of 20th December, 1844, it is enacted, “ that hereafter it shall not be lawful for any of the judges of the Circuit or County. Courts to give or sign bills of exception, after the adjournment of the Court, at which they may preside, at which the exception may be taken: Provided however, by the consent, of counsel reduced to writing, a longer time may be allowed, not to extend beyond ten days from the adjournment of said Court.” Further, “ it shall be the duty of éach judge of the Circuit and County Courts, when they sign bills of exceptions, to add thereto the correct date of such signing.”

The terms of this enactment very clearly indicate, that it. is not merely directory to the judges, but that it is mandatory, and its observance imperative. It declares that it shall not he lawful for any of the judges to sign hills of exception, &c. and is not a direction to them to perfect bills in term time.

The evil complained of was.; that the judges were frequently called upon after the Court at which the causes had been tried, had adjourned, to seal bills of exception, and when the facts and the point's reserved had faded from their memory; that sooner than submit to the suspicion of not being willing to have their judgment revised, they sometimes signed bills which were inaccurate, and which occasioned a reversal to the prejudice of' the other party. To' avoid such a result, the act in question was passed.

The assent of the parties, that the judge might retain the bill, examine and sign it after Court, we think can have no. influence. The statute, by way of proviso to the sweeping prohibition, declares that the consent of counsel, in writing, may legalize the signing, if made within ten days after the Court closes its sitting. This proviso must be regarded as an exception, and equivalent to an express inhibition to sign a bill out of term time, unless the consent is thus given.

We decline considering, at this time, whether the defendant can have the benefit of his bill 'of exceptions, by adopting the coarse prescribed by the act of 1826, where the judge fails or refuses to certify an exception taken on the trial of a cause. A motion having that object in view, will bo entertained and adjudicated when it is explicitly made.

Our conclusion is, that in the present aspect of the case, the bill of exceptions cannot bo regarded as a part of the record, and will therefore be stricken out.