C. A. Stern & Co. v. Collier

McCLELLAN, J. If the question intended to be presented in these cases was before us, we should probably hold that the circuit court erred in ordering that no execution issue on the judgments, and that they be certified to the probate court on the mere suggestion of defendant that the estate of his intestate “is insolvent.” The fact that said estate had been declared insolvent should have been pleaded — not merely suggested — and proved. — Code, §§ 2250, 2251; Dolberry v. Trite’s Executor, 49 Ala. 207; Cunningham v. Lindsay, 77 Ala. 510. But the question is not presented by this record. We find in the transcripts motions to set aside the orders, denials of the motions, and recitations that “moveant excepted.” None of these matters belong to the record of the court below. They could only be made a part of the record for the purposes of appeals by bills of exceptions. Neither one of the transcripts contains a bill of exceptions. We are not allowed to consider these matters unless they are certified to us in the only way provided by law — incorporated in bills of exceptions, signed by the presiding judge and transcribed and certified to us by the clerk of the court. No question being reserved, each of these appeals must be dismissed.