6 Div. 963.
Supreme Court of Alabama.
January 17, 1924.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
John W. Altman and J. K. Taylor, both of Birmingham, for appellant.
In view of the decision, it is not necessary that brief of counsel upon the merits of the cause be here set out.
Weatherly, Birch Hickman, of Birmingham, for appellee.
The suit by the wife (appellant) against the mother-in-law was for damages for alleged alienation of the affections of appellant's husband. This class of suit is not new in this jurisdiction. Parker v. Newman, 200 Ala. 103, 75 So. 479; Coker v. Coker, 209 Ala. 295, 96 So. 201; Woodson v. Bailey, post, p. 568, 98 So. 809.
The complaint contained two counts. Demurrers having been overruled, a plea of the general issue in short by consent was interposed. No question for review is presented by the record proper.
The judgment for defendant on the verdict of the jury was duly entered on January 24, 1923 (Lewis v. Martin [Ala. Sup.] 98 So. 635 ), motion for new trial made and passed until February 24, 1925, and continued or passed from time to time to its final hearing on May 5, 1923, when it was overruled.
Ante, p. 401.
The judge presiding at the trial having died without the bill of exceptions being presented to him, the same was filed in the office of the circuit clerk in lieu of presentation to the trial judge on July 14, and on July 16 was presented to "Hon. John C. Anderson, Chief Justice," and was signed by him "as and for a legal bill of exceptions in said cause" on July 16, and returned and refiled in said clerk's office July 17, 1923, as the established bill of exceptions in said cause.
The appeal taken on the 11th day of May, 1923, was "an appeal returnable to the Supreme Court of Alabama, to supersede and reverse judgment for costs, recovered by the said Mrs. Mary E. Meade against the said Mrs. Francis [Frances] Meade on the 24th day of January, 1923, of the circuit court for costs." It will be noted that it was not an appeal from the judgment on the motion for new trial made and entered of date May 5, 1923.
Statutes providing for the establishment of a bill of exceptions under the circumstances indicated are sections 3021 and 3022 of the Code of 1907. The Acts of 1915, p. 816, amended section 3022 of the Code and not section 3021 of the Code. Sov. Camp, W. O. W., v. Ward, 206 Ala. 4, 89 So. 291; Fries v. Acme White Lead Color Works, 201 Ala. 613, 79 So. 45; Holmes v. State, 207 Ala. 691, 93 So. 546.; National Pyrites Copper Co. v. Williams,
Due presentation, within the terms of the statute, may be made by filing with the clerk, under the facts authorizing such a presentment as in the instant case. Munson S. S. Line v. Harrison, 200 Ala. 504, 76 So. 446.
There being no appeal from the ruling on the motion for a new trial, as appellant might have done (Liverpool, etc., Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765), we must consider if due presentation of the bill of exceptions was made within 90 days from rendition of judgment on the verdict of the jury. Such not being the fact, it is jurisdictional (and the court ex mero motu takes notice thereof) and falls within the rule applied in General Ordnance Co. v. Bowen, 209 Ala. 574, 96 So. 753. The only matters for consideration are those presented by the bill of exceptions, and it results that the judgment must be affirmed. Garner v. Thach, 208 Ala. 11, 93 So. 416.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.