Opinion
6 Div. 11.
January 13, 1921. Rehearing Denied April 14, 1921.
Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.
Percy, Benners Burr and Salem Ford, all of Birmingham, for appellant.
Counsel discuss the case on its merits as presented by the errors assigned as of the original trial. On the other questions they insist that the succeeding judge had the right to hear the motion for a new trial and to act thereon. 23 Cyc. 541-567; 29 Cyc. 923; 29 Cent. Dig. 1672; 37 Cent. Dig. 1197. It is unnecessary that the evidence heard at the original trial should be reintroduced. 9 Ala. App. 152, 62 So. 560; 150 Ala. 562, 43 So. 840. In this case the bill will be established. Sections 3021, 3022, Code 1907, as amended Acts 1915, p. 816. The agreement of counsel dispenses with further formality. 16 Ala. App. 687, 81 So. 135.
Goodwyn Ross, of Bessemer, and Black Harris, of Birmingham, for appellee.
When once established, the bill of exceptions cannot be amended. 74 Ala. 61; 73 Ala. 256. This cannot be done, even by agreement of parties. 173 Ala. 559, 56 So. 120; 116 Ala. 603, 22 So. 897; 4 C. J. 315. Counsel discuss the appeal on its merits also.
It is the settled law in this state that a bill of exceptions derives its existence from the statute, and it cannot become such unless it is duly authenticated, and made a part of the record, as prescribed by the statute. Petty v. Dill, 53 Ala. 641; Edinburgh Co. v. Canterbury, 169 Ala. 444, 53 So. 823; King v. Hill, 163 Ala. 423, 51 So. 15; Smith v. State, 166 Ala. 24, 52 So. 396; Rainey v. Ridgeway, 151 Ala. 532, 43 South, 843; Leeth v. Sawyer, 2 Ala. App. 311, 56 So. 757; Thacker v. City of Selma, 16 Ala. App. 345, 77 So. 939.
The presentation of a proposed bill of exceptions to the trial judge, or the filing thereof with the clerk, within 90 days from the rendition of the judgment or order sought to be reviewed, is a fact essential to the authority and jurisdiction of a justice of this court to establish such bill of exceptions and make it a part of the record, under the provisions of section 3022 of the Code of 1907, as amended by the act approved September 25, 1915 (Gen. Acts 1915, p. 816). Munson Steamship Co. v. Harrison, 200 Ala. 504, 76 So. 446; Sovereign Camp, W. O. W., v. Ward, 200 Ala. 19, 75 So. 331; Scott v. State, 16 Ala. App. 343, 77 So. 937.
The judgment in this case was rendered on June 24, 1919, and the proposed bill of exceptions does not appear to have been presented to the Honorable H. A. Sharpe, who presided on the trial, and was not filed with the clerk of the court until November 24, 1919, more than 90 days after the rendition of the judgment. Therefore, the paper incorporated in the record as a bill of exceptions cannot be looked to for the purpose of reviewing the ruling of the court presided over by Judge Sharpe on the trial. It is equally as clear that it cannot be looked to for the purpose of reviewing the ruling made by Judge Wilkinson on the motion for a new trial.
Where a bill of exceptions is presented to the trial judge within the time required by the statute, and he refuses to sign it, the jurisdiction and authority to establish the bill of exceptions under the provisions of section 3019 of the Code of 1907 resides in the Supreme Court, and not the justice thereof. Sovereign Camp, W. O. W., v. Ward, supra.
Moreover, had the bill of exceptions been duly authenticated, it fails to show that the evidence and proceedings of the court on the trial was in any way heard before the court presided over by Judge Wilkinson, in passing on the motion for new trial, and for aught that appears the only matter before the court was the motion itself.
Nothing being presented by the record proper for review, the judgment of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
On Rehearing.
The appellant, in preparing this bill of exceptions, did, and naturally so, follow the beaten path blazed out by this court in Moneagle v. Livingston, 150 Ala. 562, 43 So. 840, in which it makes, in substance, this rule on appeals from judgments granting or refusing motion for new trial: On motion for new trial, it is not necessary to introduce on the hearing the substance of the evidence in the case, nor is it necessary for the bill of exceptions to recite that it was done, "the presumption being that it is in the breast of the court."
Judge Sharpe tried this case; afterwards he died, while this motion for new trial was pending. Judge Wilkinson was appointed to succeed him, heard this motion, and rendered judgment thereon. The record fails to show that any evidence was introduced. So it becomes necessary for this court, under these facts, to blaze out another path, or make an addition to the rule for appellants to follow.
The court is necessarily a person. When the judge who tried the case is dead, and his successor, or another judge, hears the motion for new trial, the substance of the evidence on the trial should be introduced. On appeal from his decision, under these peculiar circumstances, the bill of exceptions should recite, in substance, the evidence in the case, and affirmatively show that it was introduced to the new judge (the court) on the hearing of the motion for the new trial.
It fails to do so in this case. These peculiar, and sometimes almost necessary, errors of appellants in preparing cases for this court cannot be cured by agreements of parties afterwards made. This court cannot allow the record to be changed on collateral attack. The written agreement recently filed by the parties in this court as to what was before the court below, whether introduced in evidence or not — one contending it was and the other it was not — cannot be written in the record. Terrell v. Kimbrell, 88 So. 846; Pearce v. Clements, 73 Ala. 256; Fonville v. State, 91 Ala. 39, 8 So. 688; Chapman v. Holding, 54 Ala. 61.
Motion for rehearing overruled.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.