Opinion
7 Div. 709.
March 24, 1927. Rehearing Denied April 21, 1927.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
H. T. Bailey, of Ft. Payne, and O. R. Hood, of Gadsden, for appellant.
The bill of exceptions was presented and signed within the time required. Code 1923, § 6433; Farmers' Bank v. Gibson, 21 Ala. App. 389, 108 So. 628. It was error to overrule objection to the question to defendant whether he authorized any one to put due date in the note in suit. Code 1923, §§ 9041, 9042. Counsel discuss other questions, but without citing additional authorities.
John B. Isbell and Chas. J. Scott, both of Ft. Payne, for appellee.
Defendant was properly permitted to testify that neither he nor any one authorized by him filled in the blanks in the note. Charges 1 and 2 are correct. Walls v. Decatur Co., ante, p. 426, 111 So. 214.
The appeal is from the original judgment, and not the ruling on the motion for a new trial. The trial was had on August 11, 1926, and motion for a new trial made on August 24, 1926; heard and overruled on August 27, 1926. The bill of exceptions was presented and signed by the trial judge on November 19, 1926, and was filed with the clerk on December 21, 1926.
It is provided by statute that either party may, by bill of exceptions, reserve for review the rulings touching the matter in controversy which would not otherwise appear of record, "such bill to be presented to the judge within ninety days after the entry of the decree or judgment" (section 6122, Code of 1923); and that "bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment is entered, and not afterwards," etc. (section 6433, Code of 1923). Section 3019 of the Code of 1907 was amended by the addition of the provision:
"Presentation of the bill of exceptions within ninety days after the granting or refusing of a motion for a new trial shall be sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial,"
— and became section 6433 of the Code of 1923. That statute was of force and effect by virtue of the Governor's proclamation of date of August 17, 1924. The changes in the statutes were adverted to in U.S. Cast I. P. F. Co. v. Williams, 213 Ala. 115, 104 So. 28; Ettore v. State, 214 Ala. 99, 106 So. 508; Farmers' Bank v. Gibson (Ala.App.) 108 So. 628; Godfrey v. Vinson (Ala. Sup.) 110 So. 13; Hale v. Worthington, 210 Ala. 544, 98 So. 784; Summit Coal Co. v. Walker, 214 Ala. 332, 107 So. 905; Delashaw v. State, 21 Ala. App. 667, 107 So. 925.
Ante, p. 166.
The appellate court may, on motion of a party to the record, or his attorney, strike a bill of exceptions from the record because it is not presented or signed within the time required by law. Section 6434, Code of 1923; Ettore v. State, 214 Ala. 99, 106 So. 508. The making of the motion for a new trial, under the statute, extended the time for presenting the bill of exceptions. The cases of Sloss-Sheffield Steel Iron Co. v. Sampson, 204 Ala. 240, 85 So. 501, Lewis v. Martin, 210 Ala. 401, 412, 413, 98 So. 635, McMillon v. Skelton, 208 Ala. 693, 95 So. 148, Atlantic Coast Line R. Co. v. Burkett, 207 Ala. 344, 92 So. 456, Massey v. Pentecost, 206 Ala. 411, 90 So. 866, Shipp v. Skelton, 193 Ala. 658, 69 So. 102, Nat. Pyrites Copper Co. v. Williams, 206 Ala. 4, 89 So. 291, Sorsby v. Wilkerson, 206 Ala. 191, 89 So. 657, Pippin v. Perry, 206 Ala. 582, 91 So. 307, Liverpool London Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765, Shaw v. Knight, 212 Ala. 356, 102 So. 701, and General Ordnance Co. v. Bowen, 209 Ala. 574, 96 So. 753, were under section 3019 of the Code of 1907.
The facts of McMillon v. Skelton, 208 Ala. 693, 95 So. 148, were under the Code of 1907, and that decision does not rule this case under the changed statutes of 1923. The purpose of the change in the statute was to avoid the confusion or uncertainty that may have been suggested in the foregoing authorities. The motion to strike the bill of exceptions is overruled.
The trial court committed no reversible error in permitting the question and answer by defendant:
"Q. Did you authorize anybody to put that due date in there? A. I did not."
The question was by defendant, the objection by "plaintiff" on grounds stated, and it is recited in the bill of exceptions that "defendant" moved to exclude the answer of the witness on the same grounds interposed to the question. The answer was a denial of the statement of fact by witness Brock as to the preparation and delivery of the notes declared on in the complaint. There was no reversible error in this ruling, as the statute did not apply to these notes, not being negotiable, and the amount and time of payment being uncertain until the sale of the cotton, and rebutted any prima facie, authority to fill in the blank of due date if the statute applied. Section 9042, Code.
The fact that Arnold and McCall denied receipt of the letter of January 27, 1924, from Jordan, did not render charge 3 erroneous. There was a tendency of plaintiff's evidence that afforded a reasonable inference that the same was duly transmitted by United States mails to Arnold Co., and was not returned to Jordan as per return card printed on the envelope. The fact that the cotton was not sold and the denial of receipt of the letter tended to explain Jordan's margin notes sent plaintiff through Brock. Under such phase of the evidence, there was not an acquiescence, or ratification, with and after a full knowledge of the facts of Arnold's failure to sell the cotton at 34 cents per pound. There was no error in giving defendant's charge 3.
The giving of charge 4 was warranted by the written stipulations of the parties given expression in the face of the notes.
The refusal of charges 1 and 2 would not have been reversible error in the use of the word "believe" instead of the usual words "reasonably satisfied from the evidence." There was a conflict in the evidence, and the charges were not abstract. If they were subject to misleading tendencies, explanatory charges should have been requested. Walls v. Decatur Fertilizer Co., ante, p. 426, 111 So. 214.
We do not find error in ruling on the motion for a new trial within the rule of Cobb v. Malone Collins, 92 Ala. 630, 635, 9 So. 738, and Nashville, C. St. L. R. Co. v. Crosby, 194 Ala. 338, 70 So. 7.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.