Crabtree v. Nolan

DENSON, J. This cause was tried on April 15,1908, aud the record shows that an order was entered allowing defendants 60 days from that date within which to tender and have signed a bill of exceptions. The conclusion of the bill is as follows: “Tendered and approved this 9th day of June, 1908, by Hon. W. J. Pearce, judge presiding; and I certify that the bill of exceptions was filed and approved in the time allowed by the order of the court entered April 15,1908, (Signed) W. J. Pearce; Judge of the County Court of Clay.” The judgment entry shows the order referred to, and the bill was filed June 11,1908, as shown by the indorsement of the clerk. While the bill may not show with directness the date on which the judge’s official signature was subscribed thereto, yet the presumption must be indulged that it was signed on the day of its filing, and, that day being within the time fixed by the order, it must be held that the motion to strike the bill is without merit. — Kitchen v. Moye, 17 Ala. 143; Id. 17 Ala. 394; Dorsey’s Case, (Ala.) 39 South. 584. The cause originated in a justice court, and from a judgment there rendered in favor of the plaintiff the defendants prayed an appeal to á jury. The jury was impaneled by the justice on the day fixed for the hearing, whereupon trial was had, and from a judgment rendered by the justice on the verdict of the jury in favor of the plaintiff the defendants carried the case by appeal to the county court- In that court the plaintiff’s motion to dismiss the appeal was granted, and it is from the judgment dismissing the appeal that the defendants have taken an appeal to this court. The ground for the motion was that defendants’ appeal from the justice’s judgment to the jury was taken and granted without bond being first given as required by section 2687 of the Code of 1896. Upon this it is insisted that the judg [655] ment rendered by the justice on the verdict of the jury was void, for want of jurisdiction in that official to submit the case to the jury, and would not support an appeal. The record shows regularity in all other respects in the proceedings in the justice court. The record also shows that the plaintiff appeared, and entered into trial before the jury, without raising any point in respect to lack of a bond. In short, this question was first presented in the county court. If came too late and the county court erred in sustaining the motion. — Code 1896, § 488; Glaze v. Blake, 56 Ala. 379; L. & N. R. R. Co. v. Barker, 96 Ala. 436, 11 South. 453; Western Railway, etc., v. Lazarus, 88 Ala. 458, 6 South. 877; Walton v. Parker, 114 Ala. 673, 21 South. 826. The authorities cited by appellee are not in point. Reversed and remanded. Dowdell, C. J., and Simpson and Mayfield, JJ., concur.