Jennett v. State , 27 Ala. App. 184 ( 1936 )

This case was submitted on motion and merits. The motion in question is to establish a bill of exceptions under the provisions of section 6435 of the Code of 1923. It appears from the petition and the record that the case was tried on March 12, 1935. A motion for a new trial was presently made, and same was set down for hearing on May 25, 1935. It appears that on May 25th the motion was continued by the trial judge to a day to be later named and specified by said judge. For some unknown reason, the motion was not acted on. The bill of exceptions was presented to the trial judge more than 90 days subsequent to the date of trial, but within a period of 90 days from the 29th day of June 1935, which was the end of the term of court. The trial judge refused to sign said bill of exceptions on the ground that it was not presented within 90 days of the trial.

All that appears in the transcript is the record proper, the motion to establish the bill of exceptions, the alleged copy of the bill of exceptions to be established, and an order of the Presiding Judge of the Court of Appeals setting October 30, 1935, as a date to hear the motion. On that day there was no hearing, and same was not continued. There is no evidence of any kind whatsoever presented to the court in support of the motion to establish the bill of exceptions.

An analogous situation appears in the case of Rogers v. State, 4 Ala. App. 677, reported in full in 58 So. 755. The court in said case overruled the motion, as it was not supported by evidence as is required by sections 3021 and 3022 of the Code of 1907, and Supreme Court Rule 40. Sections 3021 and 3022, Code of 1907, are carried forward as sections 6435 and 6436 of the Code of 1923. A reference to the original record in the Rogers Case (Alabama Appellate Reports, Vol. 42, November Term 1911-1912, 6th Div. 195) shows a like situation to the instant case.

The motion in the instant case is overruled, as there is no evidence to support same. Rogers v. State, supra. See, also, Eason v. State, 22 Ala. App. 424, 116 So. 409.

The record proper being in due form, the judgment appealed from is affirmed.

Affirmed.