The submission was on the motion to strike the bill of exceptions or the transcript of evidence in lieu thereof and to strike various parts thereof.
The motions were supported by two affidavits attached to and made a part of the motions. The grounds, among others, were* that the “bill of exceptions or transcript of evidence were not made up in accordance with the General Acts of 1943, p. 423;” Code 1940, Cumulative Pocket Edition, Tit. 7, § 827(1); and not made in accordance with Rule 48 of the Supreme Court, adopted June 28, 1944, Code 1940, Tit. 7 Appendix, 245 Ala. XXI, and XXII.
Salient facts touching the motion are that the verdict and judgment for appellee are of date of April 14, 1944, and on the 13th day of May thereafter, the appellant American Life Insurance Co., a corporation, filed in the office of the clerk of said court a motion for a new trial. The clerk certified the absence of the trial judge on that day. This likewise was shown by the certificate of the trial judge. He also certified that the motion was presented to him for hearing and determination on May 26, 1944, and set for hearing on June 12th, 1944. The further orders of the trial judge for continuance were respectively made within the time of the hearings, of date June 30th, and July 17th, 1944. On the latter date the motion was overruled by the said judge and appellant (defendant) excepted.
We take judicial knowledge of the location of the several county seats in Alabama, the confines of the several judicial circuits, the offices of the clerks of said courts, the number of circuit judges therein, and their official residence. The circuit judges and their residences are of record in the office of the Secretary of State and set out in the Alabama Reports. Touching the Ninth Judicial Circuit, in which this trial ‘was had, see 245 Ala. VII. This is a matter of the history of our state. Time will be counted from the date of the judgment on the motion, since there was no discontinuance in the case at bar. Code 1940, Tit. 13, § 119; Montgomery Production Credit Ass’n v. M. Hohenberg & Co., 31 Ala.App. 117, 12 So.2d 865, no certiorari to this court.
This is an action in two counts on an insurance policy, which is not copied into the record, but which the reporter certified as Exhibit 1, with application for policy. The reporter certified further that the exhibits could not be “reproduced and copied on the typewriter.” Photostatic copies, of the application for the policy are not copied in the record as a part of the exhibited policy, the reporter certifying that he could not reproduce and copy same as a part of the record. So of the provision for double indemnity insurance on which the second count is rested.
Under the present statute the court reporter is required-to “promptly transcribe the evidence, including objections, oral motions and rulings of the court, certify to it and file it with the clerk. He shall also identify and copy all exhibits offered in evidence in the order in which offered. * * * If any exhibits be offered in evidence which the court reporter cannot copy, he shall at the appropriate place describe and identify them and certify that they cannot be copied, and such exhibits shall be forwarded to the appellate court and be considered along with the record.” General Acts 1943, p. 423, Code 1940, Tit. 7, § 827(1); Supreme Court Rule 48, adopted June 28, 1944. 245 Ala. XXI.
It is insisted by movant that the certificate of the court reporter that the foregoing transcript “contains a true and correct copy of the oral proceedings had and done in this cause to the best of my stenographic and reportorial skill and ability,” does not comply with the statute, and does not show that the transcript “contains all the evidence.” The record shows the *595transcript of evidence of the trial was certified by the official court reporter of that circuit, and was filed with the clerk of the court on the 18th day of July, 1944. The court reporter, no doubt, did not make other certificate for the reason that he had omitted to copy all exhibits offered in evidence, for the reason stated by him in the record on notice and exhibited when offered in evidence. Gen.Acts 1943, p. 423, § 1; Code 1940, Tit. 7, § 827 (1). For example, the insurance policy, applications therefor, and the provisions for double indemnity are recited as Exhibit N — 1.
It is insisted by appellant that the record affirmatively shows the required transcript of the evidence was filed with the clerk of the court within the time and in the manner provided by Code 1940, Tit. 7, § 827(1) et seq., and Supreme Court Rule 48. That the attorneys of record were notified of the filing of said transcript within the time and in the manner provided by statute and the rule of this court.
The record further shows that neither party filed with the clerk objections to the certified transcript within ten days from the date of its filing with the clerk or, as for that, at any subsequent date. It is not necessary to refer to the early history of the statute under consideration. It will be noted that on rehearing in Spurlock v. J. T. Knight & Son, Inc., Ala.. 18 So.2d 685, 688,1 the court observed: “Upon consideration of the case of Algernon Blair et al. v. Brownie Burnell Greene, Adm’x. Ala. 18 So.2d 688,2 the majority of the Court concluded that a transcript of the evidence duly certified by the court reporter required no approval of the trial judge in the absence of any question as to its correctness, as provided in the concluding clause of Section 1 of the act here involved. Rehearing was consequently granted, the judgment of affirmance set aside, and the cause restored to the docket for consideration upon the merits. The instant case is controlled by the decision in the Blair case, and upon that authority a like order is entered in this cause.”
On the same day in Blair et al. v. Greene, Ala., 18 So.2d 688, 690,2 the court held that acts abolishing bills of exceptions and substituting reporter’s transcripts of evidence required the trial judge’s approval of the certified transcript only when the correctness of the transcript of evidence was questioned, or a succinct statement of evidence prepared in case of the reporter’s death, or inability, for some other reason, to transcribe the evidence. Mr. Chief Justice Gardner for the Court said:
“Looking, therefore, at the act from its four corners, and considering its history, we are persuaded that it was the legislative intent to make the certified transcript of the evidence, when unquestioned, the record for consideration of the Court on appeal; and that the approval of the trial judge was not necessary in such event. His approval is necessary only when the correctness of the transcribed evidence is brought into question, or when a succinct statement of the evidence is presented in the contingency provided for in Section 3.
“Section 4, therefore, is to be construed as fixing the time within which the matters shall be done, and to provide for the approval of the trial judge in the event of a contest as to the correctness of the transcribed evidence or the succinct statement in the contingency provided for in Section 3. Such construction harmonizes all the provisions of the act, and we are persuaded carries out the legislative intent.
“We are further persuaded that a ‘transcript of the evidence,’ as used in this act, means a copy thereof. Such is the commonly understood meaning of the word ‘transcript.’ * * * ”
This court takes judicial knowledge of the fact that immediately following the decisions in the above cases, Rule 48 of the .Supreme Court was promulgated, giving what was understood to be the law full force and effect. Salient portions of said Rule 48 are :
“Upon filing the certified transcript with the clerk, the reporter shall also certify that he has notified both parties or their attorney of record that he has done so.
“Within ten days thereafter either party may file with the clerk objections to the certified transcript, with his certificate that he has notified the opposing party or attorney of record that the same will be called to the attention of the trial judge at a specified time and place. The hearing of objections and the ruling of the judge thereon shall all be concluded within a period of ninety days from the date of trial or the date of the ruling on motion for new trial.” Code 1940, Tit. 7 Appendix, 245 Ala. XXI.
*596Counsel for appellant observe that the concluding paragraph of the said rule is as follows: “The certified transcript, though filed after the ninety-day period herein referred to but within the time for taking an appeal, will nevertheless be considered by the Court if no objection thereto is presented upon the submission of the cause; and it may be so considered in the discretion of the Court, even though the point as to the delay be presented on appeal, unless counsel objecting thereto shall point out, with supporting affidavit, material omissions or defects in such certified transcript which should and would have been the subject of contest before the trial judge; in which latter event the certified transcript is not to be considered.” 245 Ala. XXII.
The questions for decision are, did the reporter comply with the law as to the instant transcript of evidence; and when no objection to the certified transcript was filed in the lower court and no proceedings had before the trial judge as to approval of the transcript of evidence or rulings on objections thereto by the trial court, may such objections be presented and decided in this court?
The reporter of decisions will set out in the statement of facts the salient provisions of objections and motions to strike the bill of exceptions or the transcript of evidence in lieu thereof by appellee filed in the cause in the Supreme Court on February 3, 1945. The substance of the two affidavits attached to the motion by one counsel and by the clerk of the Circuit Court of Marshall County will also be set out. As to this counsel for appellant insist that no objection to the certified transcript of evidence was filed with the clerk of the circuit court, and under the provisions of Rule 48 of the Supreme Court, there was no occasion for the trial judge to approve the transcript of evidence, or to rule upon objections thereto. The record shows that no such objection was made. Appellee further insists that the transcript of evidence being unquestioned before the circuit judge, as provided by the law, upon being presented to this court, it becomes the record for consideration on this appeal. That is to say, the procedure here by way of motion is unauthorized by the statute and decisions and Rule 48 of the Supreme Court.
There is a decision by Mr. Justice Foster, Home Insurance Company v. Shriner (Aetna Ins. Co. v. Shriner), 235 Ala. 165, 177 So. 890, 114 A.L.R. 574, where a question arose as to whether a note of testimony in an equity case should or should not be included in a transcript. The note of testimony was not included in the transcript, and the appellant contended that there was such a note, and that it should have been in the transcript. This court declined to pass upon that question, taking the view that it was not our province to determine what was properly, a part of a record in a trial court, but. that it belonged exclusively to that court. We, therefore, made an order directing that the question be determined by the trial court, if the appellant wished to have the question passed upon in this court. Nothing was mentioned in the opinion of the court on that subject, but our records disclose such an order.
Thereupon a proceeding was had ih the trial court on motion of appellant to have a note of testimony made a part of that record. That proceeding resulted in a denial of the complainant’s motion, and an appeal was taken to this court, which is reported in Home Ins. Co. v. Shriner, 235 Ala. 65, 177 So. 897, in which we reviewed the ruling of the trial judge on that motion, since his judgment was a final judgment, and we reversed, rendering a judgment that he did not give due consideration to certain principles of law, and that on the facts presented, the note of testimony was properly a part of the record. And when the appeal was considered, we treated the record as containing a note of testimony.
In Clark v. Henderson, 244 Ala. 237, 12 So.2d 743, the bill of exceptions was stricken on motion made when the bill of exceptions was, in fact, filed after the time provided by law, and the like rule obtains as to changing the same after such undue filing.
The question before us is one of striking certain pages or parts from the report of the proceedings by the reporter, properly certified, and after notice was duly given, for the alleged reason that said pages were inserted without consent of the parties after the reporter made his initial report and gave notice to counsel. The final certificate of the clerk to the record, on which submission was had and motion made upon submission, was:
*597“Certificate of Record.
“I, J. B. Hawk, Clerk of the Circuit 'Court of Marshall County, Alabama, in and for said County, hereby certify that the foregoing pages numbered from 1 to 378 inclusive contain a full, true and complete transcript of the record and proceedings in the cause of: J. William Anderson — vs—American Life Insurance Company, of Alabama, a Corporation, as the same appears and remains of record and on file in this office.
“Witness my hand and seal of this court this the 26th day of January, 1945.
“(signed) J. B. Hawk
“J. B. Hawk, Clerk of Circuit Court,
“Marshall County, Alabama.”
The above certificate was made within the time of taking the appeal and more than six months after the certificates of the official court reporter.
We may add the further observation that the last paragraph of Rule 48 has nothing to do with the correction of the record. If the record is not correct when filed, it must be corrected as provided in the previous paragraphs of said rule. The last paragraph merely provides that though the stenographic report is not filed in time, but is filed within the time •of taking an appeal, this court may, in its •discretion, no objections being made thereto, consider the record as filed. If objections are made by appellee, with supporting affidavits pointing out wherein the record is not correct, and such objection is sustained, the court will exercise its discretion against the appellant, and refuse to consider the record. 245 Ala. p. XXII.
It is the province of the trial court, duly invoked, to determine under the statutes, Rule 48, and our decisions, what should be incorporated in the record on appeal, subject to review on final determination, as from any other final judgment.
Supreme Court Rules 24 and 25 are not invoked in this case. Code 1940, Tit. 7 Appendix, p. 1013. Rule 27, touching matters omitted from the transcript, under the former statutes and decisions, is not in •conflict with Rule 48, recently interpreted and applied by this court. Code 1940, Tit. 7 Appendix, p. 1015.
For illustration, does an inspection of Exhibit I (“Application for Insurance” with “Provisions for Double Indemnity for Accidental Death”; and “Policy of Insurance of date of March 14, 1940,” with “Double Indemnity Rider Attached. Dated Back Saving Age”), show that the same could have been copied into the original transcript by the reporter on the typewriter? Is such Exhibit I saved by the certificate of the court reporter taking the testimony that he could not reproduce the same and that they could “not be copied on the typewriter”? These documents are the basis of the lawsuit on which the judgment appealed from is rested. It is not necessary to comment on the “Schedule of Exhibits” from One' — “Insurance Policy Sued On”; Number Three “Note” (on which the insurance was obtained); and many others, including pictures of the car and the defendant’s ■ clothing, which may fall within the rule that obtains, as these exhibits were introduced on the trial and do not touch the interpolated matter In compliance with the Act of July 12, 1943, as amended by Rule 48, supra, the court reporter is not required to make photostatic copies of exhibits, nor undertake to copy them unless it can be done on a typewriter or printed. See Rule 26, Supreme Court. If no objection is made, as provided in Rule 48, supra, because an exhibit is not copied by the court reporter, or if the trial judge' holds on objection that the reporter cannot copy the exhibit, it will be considered by this court, if properly certified, and sent to this court, subject to review as provided in said rule.
The affidavit of the clerk of the court and of one counsel for appellee places beyond controversy the true status of the alleged record as the transcript of evidence entered and placed before us. The appellant, recognizing that it could not properly insist that pages 35-1 to 35-41, inclusive, were filed within the time, or constituted any part of the record, expressly waived assignment of error one and assignment of error two. These are assignments of error going to the overruling of defendant’s motion to quash service, and to the refusal of the affirmative charge on defendant’s plea in abatement, to which matters pages 35-1 to 35-41 of the record relate.
The appellee’s motion to strike and argument on file in this court is to the effect that:
“When the appellant has caused the record to be materially altered on more than *598one occasion, it should not simply decline to profit by such alterations, but that its action has in legal effect invalidated the entire record, and that the certified transcript of the evidence should be stricken.
“It is respectfully submitted that upon any one or more of these several grounds (of the motion), the Court should sustain the appellee’s objections and motions to strike the certified transcript of the evidence.”
We are not in accord with the insistence of the motion to strike the whole transcript of evidence on which the verdict and judgment of the court rested. The matter incorporated in the record by the clerk of the court, after the court reporter’s certificate and notice, is not considered, or necessary for consideration, in a judgment here on the main question presented by this appeal. The appellant does not insist upon assignments of error on the motion to quash the service or on refusal of the affirmative charge.
The motion is overruled, insofar as it relates to striking the entire record; but the motion is granted, as to the transcript of the testimony relating to defendant’s plea in abatement, because it appears on its face that it was filed January 4th, 1945, and without authority of law.
All the Justices concur as to the ruling on the motion, except GARDNER, C. J., not sitting.Ante, p. 33.
Ante, p. 28.