Johnson v. Frix

MAYFIELD, J. The majority of the court are of the opinion that the bill of exceptions must be stricken, on appellee’s motion, because not signed within the time prescribed by the statute. It is alleged in this, motion — and the allegation is supported by the affidavits of counsel for appellee — that although on its face the bill of exceptions appears to have been signed within the time allowed by the statute, and to have *255 been indorsed by the trial judge in conformity to tlie statutory requirement as to the time of filing, yet as a matter of fact it was not so signed. The majority are of the opinion that the facts alleged in the motion may be proven by affidavits, as was done in this case, notwithstanding that it appears, by the trial judge’s indorsements of the bill and by the face of the record itself, that the presentation and signing were in conformity to the statute; and that this decision is in line with the holding in the case of L. & N. R. R. Co. v. Malone, 116 Ala. 600, 22 South. 897, Rainey v. Ridgeway, 151 Ala. 532, 43 South. 843, and Leeth v. Kornman, Sawyer & C o ., 2 Ala. App. 311, 56 South. 757.