Opinion
6 Div. 833.
April 7, 1942. Rehearing Denied May 12, 1942.
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action for damages for assault and battery by Clara Carter against W.H. Merritt. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Merritt v. Carter, 6 Div. 47, 9 So.2d 779.
Chas. W. Greer, of Birmingham, for appellant.
Presentment of bill of exceptions within the time prescribed by the statute is not jurisdictional. Code 1940, Tit. 7, § 827, note. Appellate Courts are not authorized to strike except on motion to that end. McMahon v. Dozier, 237 Ala. 574, 187 So. 710. The courts cannot ignore exceptional features. Patterson v. State of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082. The motion for new trial having been filed more than thirty days after the judgment, it was subject to be stricken on motion of plaintiff. But no such motion was made. Plaintiff's acquiescence in the continuance of the motion was a waiver of lack of jurisdiction. Greer v. Heyer, 216 Ala. 229, 113 So. 14; Ex parte Phillips, 231 Ala. 364, 165 So. 80; Cain v. Jefferson Standard L.I. Co., 227 Ala. 458, 150 So. 689; Farmers' Bank of Luverne v. Gibson, 21 Ala. App. 389, 108 So. 628; Bigelow on Estoppel (6th Ed.) p. 748; 6 C.J.S., Appearances, p. 37, § 12. A waiver involves the intentional surrender of a known right. Isom v. Johnson, 205 Ala. 157, 87 So. 543; Clemmons Power Co. v. Metcalf, 171 Ala. 101, 54 So. 208; Reynolds v. Travelers' Ins. Co., 176 Wn. 36, 28 P.2d 310; Fipps v. Stidham, 174 Okl. 473, 50 P.2d 680. Appellee having assumed the position of recognizing the trial court's authority to proceed with the motion, was thereafter estopped to deny the court had jurisdiction and to deny the bill of exceptions was presented in time if to do so would prejudice the rights of appellant. Brown v. French, 159 Ala. 645, 49 So. 255; Wright v. Fanning, 229 Ala. 278, 156 So. 849; Richards v. Shepard, 159 Ala. 663, 49 So. 251; Scharfenburg v. Decatur, 155 Ala. 651, 49 So. 95; Ray v. Hilman, 229 Ala. 224, 157 So. 676; Tobias v. Morris Co., 126 Ala. 535, 28 So. 517. Appellee by her conduct recognized the jurisdiction of the trial court over the motion and its authority to continue it to June 7th. That, then, is the first date on which she may properly question the fact that the motion was alive. Hence, the bill of exceptions presented within 90 days from that date conformed to the statute. Childers v. Samoset Cot. Mills, 213 Ala. 292, 104 So. 641; First Nat. Bank v. Burch, 237 Ala. 680, 188 So. 859; Eubank Caldwell v. Fuller, 156 Va. 635, 158 S.E. 884.
F.D. McArthur and Hal W. Howard, both of Birmingham, for appellee.
Bills of exceptions must be filed in the trial court within 90 days from the date of judgment or order granting or refusing motion for new trial. Code 1940, Tit. 7, § 822. Motion for new trial must be filed within 30 days from date of judgment. Any order of the trial court on motion filed after the thirty day period was a nullity. Code 1940, Tit. 13, § 119; Code 1940, Tit. 7, § 276; Birmingham v. Andrews, 222 Ala. 362, 132 So. 877; Greer v. Heyer, 216 Ala. 229, 113 So. 14; Ex parte Campbell, 229 Ala. 422, 157 So. 675.
The record in this case discloses that the judgment appealed from was pronounced and entered by the trial court on April 2, 1941; and that the bill of exceptions was presented to the trial judge on the 4th day of September, 1941, and was approved and signed by said judge on October 3, 1941.
This record further shows that on May 13, 1941, the defendant filed in the trial court his motion for a new trial, and on that day presented said motion to the trial judge, who immediately continued said motion for hearing to 7th day of June, 1941. Upon the hearing of the motion June 7, 1941, said trial judge dismissed said motion upon the ground that it was filed more than 30 days after rendition of the judgment.
Appellee has here filed her motion to strike said bill of exceptions from the record, for the reasons stated, and the submission in this court was had upon "Motion and merits."
The Statute (Code 1940, Title 13, Section 119) provides, that after the lapse of 30 days, from the date upon which a judgment is rendered, the trial court loses all power over it, unless a motion to set aside the judgment and grant a new trial has been filed and called to the attention of the court and an order entered, within said 30 days continuing it for a future day.
It affirmatively appears from the record, that on the date of filing said motion the trial court had no jurisdiction whatever, over said motion. The interested parties themselves could not by agreement, or otherwise, confer any power or authority upon the trial court to entertain or consider said motion. Ex parte Margart, 207 Ala. 604, 93 So. 505.
It is therefore apparent that the action of the trial court in continuing said motion for hearing to June 7, 1941, was a nullity and did not operate to extend the time within which to present a bill of exceptions. Ex parte Margart, supra.
Under the Statute a bill of exceptions must be filed within 90 days from the date of the entry of the judgment, and not afterwards. Code 1940, Tit. 7, § 822. As stated, the judgment in the instant case was entered on April 2, 1941. The bill of exceptions was filed and presented to the trial judge on September 4, 1941, or more than 90 days from the entry of the judgment. Hence, said bill of exceptions was not filed in compliance with the provisions of the controlling Statute, and the motion of appellee to strike said bill of exceptions must be, and the same is hereby granted, and the bill of exceptions, for the reasons stated, is stricken from the record in this case. Hayes v. Woodham, 139 Ala. 387, 36 So. 545; Margart's case, supra.
The bill of exceptions having been stricken, the rulings of the trial court upon the testimony, and upon the giving or refusal of special written charges may not be reviewed. Mauney v. Electric Const. Co. et al., 210 Ala. 554, 98 So. 874; City of Birmingham v. Chambless, 222 Ala. 249, 132 So. 313.
Affirmed.