Dantzler & Sons v. Swift Creek Mill Co.

HARALSON, J. The bill of exceptions in this case shows on its face that it.was signed by the presiding judge in vacation and after the adjournment of the court at which the trial was had. Nothing appears in the record of the court below showing that any order was made by the count in term time, authorizing a bill of exceptions to be signed in vacation. The recital in the bill of exceptions that the same was signed “within the period allowed and ordered by the court for the presentation of a bill of exceptions” is nothing more than the statement by the judge and is insufficient to supply the omission of so important- a requirement as the making of an order by the court. It cannot, therefore, he considered for any purpose, — Carter et al. v. Long et al., 125 Ala. 280; Morningstar v. Straton, 121 Ala. 437; Alexander v. The State, 117 Ala. 220; Elliot on Ap. Pro., 801 and authorities cited, n. 3; Kimball v. Penney, 117 Ala. 245; Maddox v. Broyles, 42 Ala. 436; Bryant v. The State, 36 Ala. 270. The- two remaining assignments of error relate, to the rulings of the court on the pleadings. It has been repeatedly held by this court that a mere recital in a minute entry that certain demurrers “were, overruled” or “sustained” by the court, as the case may. be, does not show- a sufficient judgment by the court upon which to base an assignment of error. — Ala. Nat. Bank v. Hunt et al., 28 So. Rep. 488; Carter et al. v. Lonq et al., 125 Ala. 280; Bessemer Land Co. v. Dubose, 125 Ala. 442; Cartlidge v. Slone, 124 Ala. 596; McDonald v. Railway Co., 28 So. Rep. 165, and authorities there cited. Let the judgment of the circuit court be affirmed.