Stuart v. Oldacre , 122 Ala. 676 ( 1898 )

Opinion by

McClellan, C. J.

This was a proceeding under section 2649 of the Code of 1896, in the Circuit Court of Morgan county, to substitute an order extending the time to have signed the bill of exceptions in the case of J. B. Stuart v. W. H. Oldacre, which had been tried in said circuit court, at the fall term, 1896, and judgment rendered in favor of the plaintiff, from which judgment notice of appeal was given, and the defendant allowed thirty days in which to present and have signed his bill of exceptions.

Soon after the adjournment of said term of the court, the Hon H. C. Speake, the judge of said court, and who presided at said trial, was taken very sick, and at the expiration of the thirty days was unable to settle the disputed points in the bill of exceptions, and extended the time for signing the same an additional thirty days.

The petition for the substitution of said order was filed in the circuit court of Morgan county, where the case had been tried, Maych 31st, 1898, and notice given appellant, as required by law, and a copy of the petition, together with a copy of the proposed substitute, was served on appellant at the same time with the notice. This petition was verified by affidavit.

When the petition came on to be heard the court asked the attorney for J. B. Stuart, the plaintiff in the case, what response he had to make to the petition, and he replied that he had no response to make. Thereupon the court granted the application and the prayer of the petition, and the substitute was ordered to be made as a part of the record of the case. The granting of this petition and the order is assigned as error on this appeal.

The judgment is affirmed.