Lange, Simpson Brantley, of Birmingham, for appellee. Where the trial judge is still in official existence and could legally approve bill of exceptions but fails or refuses after same has been presented to him, the remedy for establishing the bill is under Code 1923, § 6435, and not under section 6436. Sovereign Camp v. Ward, 200 Ala. 19, 75 So. 331; Hale v. Worthington, 210 Ala. 544, 98 So. 784; Fries v. Acme Co., 18 Ala. App. 80, 89 So. 842; Jaffe v. Leatherman, 221 Ala. 178, 128 So. 449. Statute permitting establishment of bill of exceptions in appellate court is penal in its nature and strict compliance with its requirements is necessary. Eason v. State, 22 Ala. App. 424, 116 So. 409; Thompson v. Manufacturers' F. A. Corp., 25 Ala. App. 70, 150 So. 174. KNIGHT, Justice.
The remedy in such case is by motion made in the court where the appeal is taken to establish such bill. Jaffe v. Leatherman, 221 Ala. 178, 128 So. 449; Fries v. Acme White Lead Color Works, 18 Ala. App. 80, 89 So. 842. This defect in the record is not cured by the provisions of section 6434 of the Code, which "allow parties to waive or consent for the time of signing bills of exceptions" by the trial judge.
The bill of exceptions sought to be established was stricken. 221 Ala. 178, 128 So. 449. Under the law the defendant and his sureties on the replevin bond were duty bound to deliver the property in question within thirty days after rendition of the judgment in favor of the plaintiff on December 17, 1928.
It may be that the bill of exceptions should not be by us disregarded, Munson S. S. Line v. Harrison, 200 Ala. 504, 76 So. 446, though we have serious doubt as to the matter. Code 1928, §§ 6438(1), 6438(2), 6438(3) and 6438(4); Jaffe v. Leatherman, 221 Ala. 178, 128 So. 449; Bell v. Fischer Chair Co., 227 Ala. 374, 150 So. 141. At any rate, no motion being made to strike the bill of exceptions, and a difference of opinion being bound, in the nature of things, to arise in our court should we undertake to declare the bill of exceptions a "non est factum," we have concluded to proceed with a consideration of the appeal on its merits.