Southern Ry. Co. v. Williams

On Rehearing. It is urged that the court should not decline to consider the bill of exceptions because no motion was made to strike the same upon the submission of the cause to the Court of Appeals, which said cause was transferred to this court under the Acts 1911, p. 449. True, section 3020 of the Code of 1907 forbids striking a bill of exceptions by the court ex mero motu, except upon a motion seasonably made, because not signed in time; but, as heretofore held, this section does not apply to a failure to present the bill as required by section 3019 of the Code and Acts 1915, p. 816, as this is jurisdictional, and the point must be taken whether a motion to strike was or was not made upon the submission of the cause. Box v. So. R. R., 184 Ala. 598,64 So. 69; Hartselle Co. v. Wilhite, 3 Ala. App. 612,57 So. 129.

It is next insisted that under the early case of Collier v. State, 2 Stew 388, the indorsement of the presentation was a clerical or ministerial act, which could be performed *Page 237 beyond the jurisdiction of the officer making the indorsement. This Collier Case was one in which the facts done and required were in the proper county and the clerk certified to same in another county. Here we not only have a certificate made outside of the state, but the physical presentation of the bill outside of the state, and the propriety of such a presentation is, in effect, contrary to the statute, which expressly provides for filing same with the clerk when the judge is out of the state.

The rehearing is overruled.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.