Opinion
6 Div. 534.
January 14, 1919.
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
Action between S.A. Washburn and the Johnson Bros. Company. From a judgment in favor of the latter, the former appeals. Appeal dismissed.
W.P. McCrossin and John C. Carmichael, both of Birmingham, for appellant.
William Spencer, Jr., and London, Yancey Brower, all of Birmingham, for appellee.
The testimony submitted in support of the motion to establish the bill of exceptions shows that the proposed bill was presented to the trial judge on the 12th day of July, 1918, that it was thereupon delivered to counsel for appellee, who made several changes in the bill as presented, and it was then returned to the clerk of the court, and later delivered to the judge, who failed to sign it within the time required by law. The evidence further shows that the bill, after its alteration, truly presented "the points of decision and the facts." The evidence further shows that the bill as corrected did not reach the hands of the presiding judge until after the expiration of 90 days from the rendition of the judgment.
The alteration relating to what the plaintiff proposed to show by the witness George Johnson respecting the transaction between Hildebrand, Tidwell, and Johnson Bros., through which the indebtedness of Tidwell to Johnson Bros. was extinguished, was a material alteration, and therefore the bill as presented to the trial judge was not a correct bill of exceptions, and the motion to establish the bill as corrected must be overruled. Bradberry v. State, 168 Ala. 141, 53 So. 266.
After consideration of the motion of the appellee to dismiss the appeal, the opinion prevails that this motion should be granted, and the appeal is accordingly dismissed.
Appeal dismissed.