Ewing v. Wofford

TYSON, J. — An examination of the transcript in this case discloses that the motion inserted therein Avas upon the motion docket, and it nowhere appears in the bill of exceptions, or that it was enrolled upon the records of the court. This court has uniformly held that the motion docket of the circuit court is not a record of that court, and that the only method by AAdiich the ruling of the lower court upon a motion can be reviewed by this court, is by incorporating the motion in a bill of exceptions, or by having the transcript sIioav that it Avas enrolled upon the records of the circuit court by an order thereof. — Rule of Practice, No. 2, Code, 1896, p. 1195 (Code, 1886, p„.-807) ; Ex parte Highland Ave. & Belt Railroad Co., 105 Ala. 221; Richmond & Danville Railroad Co. v. Jones, 102 Ala. 212; Lienkauff & Strauss et al. v. Tuscaloosa Sale & Advancing Co., 99 Ala. 619; David v. David’s Admr., 66 Ala. 139; Waring v. Gilbert, 25 Ala. 295. The fact, as insisted by appellant, that a copy of the motion appears in two other places in the transcript can avail him nothing, since these two copies are the ones issued and served upon the respondents, and [441] should have appeared iu the bill of exceptions. — James et al. v. Moseley et al., 47 Ala. 299; Barclay’s Admr. v. Barclay, 42 Ala. 345; Connoly v. Ala. & Tenn. Rivers Railroad Co., 29 Ala. 373, and authorities cited. The judgment entry in the transcript refers to the motion, but fails to set out the grounds thereof. There is not enough recited in it for this court to determine what issues were presented by the motion. As we are precluded under the authorities cited above from considering the motion, we are unable to determine whether the evidence recited in the hill of exceptions was admissible under the issues presented to the circuit court for decision, or whether it was sufficient to support the judgment. For the same reason we are unable to say there was error in granting the motion as shoAvn by the judgment entry. Judgment affirmed.