Opinion
2 Div. 720.
October 27, 1921. Rehearing Denied November 24, 1921.
Appeal from Circuit Court, Bibb County; F. Lloyd Tate, Judge.
Jerome Fuller and W. W. Lavender, both of Centerville, for appellant.
Counsel discuss the assignments of error, with citation of authority; but, in view of the opinion, it is not deemed necessary to here set it out. In response to the motion made by the counsel to strike certain parts of the bill of exceptions, and as holding that the papers therein set out were properly identified, they cite the following cases: Minor, 413; 89 So. 437; 73 Ala. 256; 19 Ala. 223; 37 Ala. 241; 48 Ala. 318; 50 Ala. 505; 108 Ala. 640, 18 So. 689.
Stokely, Scrivner Dominick, of Birmingham, for appellee.
The clerk had exceeded his authority in copying into the transcript certain papers not properly identified, and hence the motion to strike these papers should be granted. 108 Ala. 640, 18 So. 689; 145 Ala. 351, 40 So. 965; 189 Ala. 622, 66 So. 605; 188 Ala. 535, 66 So. 454; 11 Ala. App. 366, 66 So. 866. With these papers stricken, the court cannot consider properly the errors assigned by the appellant, and hence they affirm the case.
It is well settled by the decisions of this court that, when bills of exceptions contain blanks for the insertion of documents or instruments introduced in evidence, the same will not be considered, unless the bill so describes or identities them that the transcribing officer, unaided by memory, can readily and with certainty determine, from the description itself, what document or paper is referred to, without room for mistake. Anniston Mfg. Co. v. Sou. R. R. Co., 145 Ala. 351, 40 So. 965; Pearce v. Clements, 73 Ala. 256; Parsons v. Woodward, 73 Ala. 348. See, also, Jones v. First Nat. Bank, ante, p. 203, 89 So. 437, and cases there collected.
"The record must be so complete, that a succeeding officer, coming into the place of the one before whom the business was transacted, cannot reasonably mistake what was done." Parsons v. Woodward, supra.
The instruments, as set out in the transcript, were not so specifically described or identified in the bill of exceptions as to bring them within the requirement of the foregoing rule. They, or most of them, were merely described by the name of the parties and late, and fell short of that degree of certainty contemplated by the decisions of this court; and the references and recitals in the bill of exceptions are less definite and specific than in the case of Jones v. First National Bank, supra, which is the most recent, if not the most liberal, consideration of the rule. Moreover, should it be conceded that the reference to these documents was sufficient, we find no authority to the clerk for incorporating in the transcript — pages 38, 38 1/4, 38 1/2, and 38 3/4 — the deed from H. K. W. Smith to Julia Smith and the one from H. A. Smith and wife to H. K. W. Smith, as there is no consent or instruction in the bill of exceptions that they could or should be so set out.
As the deeds must be stricken, we cannot consider the assignments of error relating to the introduction of same as evidence. While the bill of exceptions purports to contain all of the evidence, and, as a matter of fact, it does not — as it shows that certain deeds were introduced which are not properly before this court — this court must assume that there was evidence to support the action of the trial court in giving the special charges. Wadsworth v. Williams, 101 Ala. 264, 13 So. 755; Jones v. White, 189 Ala. 622, 66 So. 605. Neither can we put the trial court in error for overruling the motion for a new trial with some of the evidence absent.
The trial court did not commit reversible error in refusing to let the defendant testify that he purchased lot 51 as a part of the Collier place, as this was a mere rehash or repetition of a fact to which he had substantially testified. He had previously gone into details and stated that the lot was a part of the Collier place, and that he was put in possession of same as a part of the Collier place. The witness, among other things, said:
"When Mr. Crawford sold the place to me he pointed out the boundaries to me and put me in possession of the entire Collier place. The land in question, lot 51, being a part of the Collier place, and was enclosed in a fence around the place."
The record disclosing no reversible error, the judgment of the circuit court must be affirmed.
Affirmed.
SAYRE, GARDNER, and THOMAS, JJ., concur.
On Rehearing.
Application overruled.
ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, and THOMAS, JJ., concur.
MILLER, J., not sitting.
The rule as to the question here determined was stated in Looney v. Bush, Minor, 413, as follows:
"Whenever it is intended to incorporate in a bill of exceptions a paper read or offered to be read, it is indispensable to set out a copy in the bill of exceptions before the same is sealed, or so to describe the paper by its date, amount, parties, or other identifying features, as to leave no room for mistake in the transcribing officer."
The authorities cited in Jones v. First Nat. Bk. (Ala. Sup.) 89 So. 437, disclose that this rule has remained unchanged, and has been consistently followed by this court. The purpose of the rule is merely to reasonably insure against mistake. The identification held sufficient is stated in the rule as by "date, amount, parties, or other identifying features." For this purpose the entire transcript is to be examined as in Moore, etc., Co. v. Penn, 95 Ala. 200, 10 So. 343 where reference was made to the fact that only one attachment was issued.
Ante, p. 203.
Here the stricken deeds are identified by name of the grantors and grantee and specific date of the deed. No other deed so corresponding in this identification appears. The only omission seems to be the description of property. Our rule has never so required, and the holding in the instant case, in my opinion, makes the rule more strict than the previous decisions of this court justify. I think the rule long established, and previously followed, is entirely sufficient, and, being opposed to a change making it more stringent, respectfully dissent.