This notion that a judge of this court, proceeding under section 6436 of the Code of 1923, the act referred to in the prevailing opinion, to hear the evidence on a motion to establish a bill of exceptions, has no authority so to proceed until he has made a perpetual memorial of the time and place of such hearing — this, I suppose, for fear the thing might be done in a corner — is not in accord with the practice in this court in previous cases of the sort.
Now it is said in effect that the writer hereof, a member of this court, in the matter of establishing the bill of exceptions was a court, a court of record, and that what was done in that behalf can be shown only by a solemn record, a perpetual memorial, and that the indorsement on the proposed bill of the true date of its presentation and the finding that it was a correct bill, of which last a memorial was made, are not enough, and the bill must be stricken, no matter what notice in fact special counsel may have had. What was done, in my judgment, was done according to the statute, and no perpetual memorial, other than a notation of the filing and finding, was necessary. No other requirement can be found in the statute. Its language is that, the —
"chief justice or associate justice shall indorse thereon [on the proposed bill of exceptions] the true date of presentation to him, and fix a time and place for hearing the matter of settling and signing such bill and prescribe the notice to be given the counsel for the opposite party."
There can be no argument that the Supreme Court of Alabama collectively, as an organized unit, as a court, has anything to do with the settling and signing of bills of exceptions, such as fall within the field in which section 6436 operates. The individual judge alone functions, and, while his finding is in the nature of a judicial act, to say that he is a court of record, within the meaning of the citations from 11 Cyc., is a misuse of terms. The alleged requirement of a perpetual memorial of interlocutory orders, save only in the matter of indorsing the date of presentation, finds no real support in the citations mentioned. The express requirement of the indorsement of the date of presentation by necessary implication excludes the idea that any other indorsement is necessary to the valid exercise of authority under the statute. "Expressio unius," etc. The majority opinion concedes that the strict letter of the statute does not require the order fixing the time and place for the hearing and prescribing the notice to be in writing. The result is that a remedial statute is construed loosely, liberally, I will say, to cut off the right of the party seeking the relief the statute was intended to give; more accurately speaking, in my judgment, the statute is amended by construction with that effect.
As for the notice, the statute authorizes the justice to "prescribe the notice to be given the counsel for the opposite party," and that is what was done in this case. 29 Cyc. 1117, is cited to the proposition that, "wherever notice is required or authorized by statute, written notice is understood." Some New York cases are cited in support of the text, which I submit on the authorities is too broad. One case, Pearson v. Lovejoy, 53 Barb. 407, had to do with the matter of perfecting an appeal by notice under the statute; and Jenkins v. Wild, 14 Wend. 545, had to do with notice which had the effect of limiting the right of appeal. Another, Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. 107, had to do with notice at the beginning of a proceeding to condemn property for public use, the equivalent of a summons in the ordinary case. I do not understand why Foley v. Mayor, 1 App. Div. 586, 37 N.Y. S. 465, should be cited, for there the statute required that notice should be filed, and the court observed that "a notice by word of mouth cannot be filed." Nor do I understand why Miner v. Clark, 15 Wend. 425, should be cited. There the ruling was: "In an action on a covenant of warranty in a deed of lands from which the grantee has been evicted, parol notice" — meaning verbal notice, as the facts show — "to the grantor of the commencement of the ejectment suit is sufficient; the notice need not be in writing." And this was the judgment of the Court of King's Bench in Rex v. The Justices of Surrey, 5 B. Ald. 539:
"We are of opinion that, where a statute requires reasonable notice to be given, it does not necessarily mean that the notice should be in writing, but only that as to time or number of days it should be reasonable. Here, however, as the fact is disputed, we shall only grant a mandamus to the justices commanding them to examine whether reasonable verbal notice has been given, and, in that case, to enter continuances and hear the appeal."
I think the correct rule is laid down in 21 Am. Eng. Encyc. Law (2d Ed.) 583, where it is said, with citation of adjudicated cases, that:
"If the character of notice to be given in a judicial proceeding is not prescribed by statute, *Page 8 it is the duty of the court in which the proceeding is begun to direct the kind of notice that shall be given."
To the same effect is 20 R. C. L. p. 343, § 4. I think these authorities sustain my view of this question.
It is said that the section in question is a substitute for section 6435 of the Code of 1923 (section 3021 of the Code of 1907). The two sections disclose their difference on their face — one (6435) is a proceeding in very material part against the trial judge; the other a mere substitution of a judge of this court for the trial judge, who, for some reason specified in the section (6436), is unable to settle the bill of exceptions. This difference this court has frequently recognized. So the statement of the opinion is error, though that, so far as concerns the question at issue, is a matter of no importance.
My judgment is that, construing the statute without disfavor to the parties for whose relief it was intended, it does not require, nor is there any very great reason why it should require, that a notice promulgated for the convenience of the parties by the judge engaged in the interlocutory business of settling a bill of exceptions should be in writing, and that, if the court desires to establish a rule different from that which has heretofore prevailed, it should not be made to operate retrospectively; and therefore, at least, since counsel for defendant, who was trying to perfect his appeal by the only means afforded him, did all that was required of him in the matter of notice — this I shall assume until the court, upon consideration of the evidence, finds the contrary — he was in no sort responsible for the alleged blunders which are adjudged to have cut off his client, and it would seem that an administration of law, with a view to the ends of justice, would suggest that the appellant defendant be now given that opportunity to establish his bill, which, it may be presumed, the statute intended to afford to all persons in his category.