Dement v. Central of Georgia Ry. Co.

McCLELLAN, j. [1, 2J The submission of the cause in this court includes a motion by the appellee to strike from the transcript the bill of exceptions, on the ground that it was not presented to the presiding judge within the time required by law (Code, § 3019), viz. “within ninety days from the day on which the judgment is entered.” There is attached to this motion, filed in the office of the clerk of this court, an affidavit of G. W. Yancey, one of the counsel for appellee (defendant), wherefrom it appears that the bill of exceptions was> not presented to the presiding judge within the time required by law. This affidavit — the only evidence, aside from the bill itself, filed on the submission reproduces pertinent correspondence passing between the presiding judge and counsel for appellee, the defendant. It is settled in this jurisdiction that parol evidence is available to show that that which purports to be a record is not in fact a record. L. & N. R. R. Co. v. Malone, 116 Ala. 600, 22 South. 897; Buck Creek Lbr. Co. v. Nelson, 188 Ala. 243, 66 South. 476. The recitals' of this affidavit and the letters of the presiding judge fully establish the basis of fact upon which the motion is founded, viz. that the true date of presentation of this bill to the presiding judge was not effected within the time required by law, and so, notwithstanding the recital, over the signature of the presiding judge, that the true date of presentation was on a date within the prescription of the statute (Code, § 3019). Under these circumstances, “the judge,” as said in King v. Hill, 163 Ala. 422, 51 South. 15, and in other cases, “had no right to receive it [the bill] after the time for presenting had expired.” [3] In the transcript, we find a paper signed by counsel for appellant, purporting to interpose objections to the admission in evidence of the mentioned affidavit and of parts thereof. This paper does not bear any mark of having been filed in the cause. It was not called to the attention of the court at the time of the submission of the appellee’s motion to strike the bill of exceptions. This paper cannot, therefore, be considered by the court in passing upon the motion to strike the bill of exceptions. The motion to strike is granted, and the bill is accordingly stricken from the transcript and record. There are no errors assigned as upon the record proper. All of the assignments are predicated of matters that, to be available on review, must be presented by bill of exceptions. No error being shown, the judgment is affirmed. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.