Driver v. Fitzpatrick

GARDNER, J. Suit in ejectment by appellee against appellant; this being the second appeal in this cause. Driver v. Fitzpatrick, 209 Ala. 34, 95 South. 466. The final judgment in the instant case was rendered March 28, 1923, and the bill of exceptions was signed by the presiding judge August 6, 1923. However, there appears no indorsement of the trial judge as to the presentation of the bill of exceptions. The foregoing dates disclose that the bill was not signed as a correct bill of exceptions within 90 days from the rendition of the judgment. “Under the decisions of this court the indorsement in question'is a mandatory requirement of the statute (Code 1907, § 3019), without which there is in fact no bill of exceptions. Edinburgh-American L. M. Co. v. Canterbury, 169 Ala. 444, 53 South. 823, and cases therein cited. Such a showing is jurisdictional, and without it this court cannot consider the assignments of error presented by the pseudo bill. * * * The seasonable presentation of the bill to be evidenced by the bill itself, remains a jurisdictional fact, and therefore is not waived by the submission of the cause without a formal' motion by the appellee to strike it from the file.” Box et al. v. Southern Ry., 184 Ala. 598, 64 South. 69. This rule has been consistently followed. Brannan v. Sherry, 195 Ala. 272, 71 South. 106; Williams v. State, 205 Ala. 76, 87 South. 530; Pippin v. Perry, 206 Ala. 582, 91 South. 307. The result is that under these authorities we have before us rc bill of exceptions. ' The assignments of error argued in brief by counsel for appellant are such as can only be reviewed by the bill of exceptions; there being no rulings on pleadings or matters of record character. The-judgment of the court below will therefore be here, affirmed. Affirmed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. .