Anniston Electric & Gas Co. v. Cooper

MoüLELLAN, C. J. It lias been the settled law in this State since the decision of the case of Kitchen v. Moye, (17 Ala. 143), that it must affirmatively appear upon the record in this court that the bill of exceptions was signed within the time prescribed by law, else it will be stricken. The bill in this case was not signed in term time; but the court on November 29, 1901, made this order: “And defendant is allowed thirty days within which to present, file and have signed a bill of exceptions.” No bill was signed, filed or presented within the period thus allowed which expired, in usual course, December 29, 1901. But on the next day, December 30th, the judge of the circuit court in which the trial was had made and filed the following order: “It is ordered that the time for preparing and having signed the bill of exceptions in this case be and the same are hereby extended ten (10) days from this date.” It is sought to bring this latter order within the period of the first by reference to section 11 of the Code in connection with the fact that December 29th, the last day of the period limited by the order of the court, was Sunday. That section provides: “The time within which any act is provided by law to be done must be computed by excluding the first day and including the last; if the last day is 'Sunday, it must also be excluded.” The argument is, obviously, that December 29th being by terms of this statute excluded from the computation of thirty days, the next day Monday, December 30th, must be included to constitute the thirty day period allowed by the order. There is very great force in this contention as an original proposition. But it is not an original proposition in this court at this time. The position of appellant’s counsel has been foreclosed against them by construction put upon this statute more than twenty years ago in a decision of this court and its subsequent reenactment .with that construction as a part of it. In Allen, Admr. v. Elliott et al. Admrs., 67 Ala. 432, this court declared: “The statute, we think, was intended merely as a reaffirmation of the common law rule, that, while Sundays [421] are generally to be computed in the time allowed for the performance of an act, if the la,st day happens to be Sunday, it is excluded, and the act must, be performed on the day previous (Saturday) ;” and it was accordingly adjudged that the action was barred the last day for its institution being Sunday and it having been brought on the succeeding Monday. In the recent case of Ex parte Jamex, 125 Ala. 119, it Aras held that the reenactment in the subsequent Codes of 188(5 and 1896 of this statute without amendment served to fix this construction upon it beyond the poAver of judicial' reconsideration. It follows that Judge Pelham’s order of December 30, 3901, AAras made after the lapse of the period al-IoavxhI in the order of court of November 29, 1901, and aauis consequently unauthorized and void; and further • that .the signing of the bill of exceptions on January 8, 1902, avus not Avithin the time prescribed by or in accordance Avith laAV. If it were suggested — as it is not by counsel — that the order of November 29th should be construed to uIIoav thirty days, not from its date but, from the adjournment of the court, one sufficient ansAver is that it Avould still not appear affirmatively that this thirty days period reached up and covered December 30th, since there is nothing to sIioav but that the court in fact adjourned on the day the order Avas made, November 29th. To the contrary the affirmation of the judge is that the bill was signed on January 8th, 1902, “Avithin the time fixed by the order of the judge of said court therefor,” thus referring to his order of December 30th, 3903, which, as Ave have seen, was invalid. Had this order affirmed or had the judge stated at the close of the bill of exception that it, the order, was made within the time al-loAved by the order made by the court on November 29th, the bill would have been saved under the ruling in, Tarver v. State, 34 So. Pep. 627, but no such statement of affirmation appears. The bill of exceptions must, therefore, be stricken; and the only assignments of error made being based upon tlie bill of exceptions, the judgment must be affirmed. Affirmed.-