HADEN et al. vs. BROWN et al., 22 Ala. 572

GOLDTHWAITE, J. A motion is submitted in this case,, on tbe part of tbe defendants in error, to strike tbe bill of exceptions from the-record, upon the ground that it appears, on its face, to have been signed by tbe presiding judge after tbe adjournment of the court at which tbe trial was bad. Tbe fact that it was so signed, is conceded by tbe counsel for tbe plaintiffs in error; but be has offered affidavits, wbicb, as be insists, sbow a state of facts wbicb should, in law, exclude tbe present case from tbe operation of tbe act of 1844, (Pamphlet Acts 1843-4, p. 5,) upon wbicb tbe motion is predicated.

This act has been twice before this court, (Wood v. Brown, 8 Ala. 563, and Kitchen v. Moye et al., 17 Ala. 143,) and has, in tbe cases cited, received a judicial construction, from wbicb, so far as tbe present motion is concerned, wé are not disposed to depart.

Tbe bill of exceptions must, in every case, sbow affirmatively upon its face, either that it was signed and sealed in term time, or that it was done within ten days thereafter by consent in writing; and wherever these requisites are wanting, it cannot be recognized as any portion of tbe record.' Even if a mistake has been committed, by affixing a wrong date, we see no means of rectifying it in this court, unless there is some matter of record upon wbicb to predicate tbe amendment. Kitchen v. Moye et al., supra.

As the statute is imperative, upon all cases properly falling within the sphere of its influence, and as amendments to tbe record are cut off under tbe operation of tbe rule we have referred to, it follows that tbe motion made by tbe defendants in error must be allowed. ' But, while we are constrained to adopt this course, we would not be understood as deciding, that, in every case in wbicb tbe judge has signed a bill of exceptions out of term time, a party is thereby deprived of his right to revise tbe action of tbe court before an appellate tribunal, Tbe act of 1814 (Clay’s Digest 307, § 5,) in effect provides, that, if, on the trial of any cause, either party shall think himself aggrieved by tbe decision of tbe court, be may tender bis bill of exceptions, wbicb, if correct, tbe judge is bound to sign and seal; and in case be shall fail or refuse so to do, tbe Supreme Court may receive such evidence of tbe exceptions as may be satisfactory, and try tbe cause as if tbe same bad been certified.

Tbe terms of this act are sufficiently explicit. If tbe counsel tendered a bill of exceptions, stating correctly the points reserved, it was tbe duty of tbe judge to sign and seal it; and failing so to do, a remedy was provided. If tbe court was adjourned by tbe sudden death of tbe presiding judge, before be bad time to examine a bill of exceptions which hád been tendered, would it be contended, that it was not a failure to sign, tbe bill, witbin tbe meaning and contemplation of tbe statute? And so, if be, by inadvertence, neglected to sign and deliver one wbicb bad been presented to bim during tbe term.

In either of these cases, we apprehend, there would be no question as to tbe right of tbe party aggrieved, to proceed to establish tbe exceptions under tbe act of 1814; and although, in tbe case last put, tbe judge might have perfected tbe bill by bis signature after tbe adjournment of tbe court, inasmuch as that act could give tbe instrument no legal validity, it would be precisely tbe same as if be bad left it unsigned, and tbe right of tbe party could not be in any wise affected by bis unauthorized act.

Neither one of tbe cases to wbicb we have referred in tbe first part of this opinion, as they are understood by a majority of tbe members of this court, is inconsistent with tbe views we have expressed. In tbe case of Wood v. Brown, supra, tbe exceptions were retained by tbe judge, with tbe consent of counsel not reduced to writing, for examination and revision, until some days after tbe adjournment of tbe court. - There was no failure or refusal on bis part; for tbe parties to tbe record consented that be should defer bis action until a period when, by operation of law, it became unlawful. And in Kitchen v.

Moye, tbe motion to amend tbe bill of exceptions was overruled, under tbe influence of tbe technical rule to wbicb we have before adverted.

Tbe precise extent to wbicb tbe act of 1814 is affected or modified by that of 1844, we do not decide; all we mean to say is, that where a bill of exceptions is shown to have been perfected, with tbe exception of tbe signing and sealing by tbe judge, and be fails to act upon it witbin tbe time prescribed by law for bis action, and such failure is not attributable to tbe party who has taken tbe exceptions, be may proceed to establish tbe exceptions under tbe statute of 1814, and is not precluded from doing so, because tbe judge subsequently signs tbe bill, and it is stricken from tbe record.

We have felt no hesitation in going outside of tbe motion, in tbe shape in wbicb it was submitted, as tbe whole ground was covered by tbe counsel; and also for tbe purpose of giving a full expression of our views in relation to tbe construction of tbe two statutes, and of indicating tbe course to be pursued in certain cases falling witbin tbe act of 1814. Tbe motion must, as we have already said, be allowed.