#### Leeth *v.*Kornman, Sawyer & Co.

*Trial Right of Property.*

(Decided Nov. 30, 1911,

Rehearing denied Dec. 14, 1911.

56 South. 757.)

1. *Bill of Exception; Preparation; Statutes.*— Section 3019 Code 1907 is mandatory, and in order to impart force to a bill of exception and to entitle it to consideration on appeal, a strict compliance with the statute is required.

2. *Same; Presentation; Time; Contradiction by Parol.*— Parol evidence is admissible to show that a bill of exceptions was not presented to the judge trying the case within 90 days after judgment, ■as required by section 3019 Code.1907, although the judge endorsed thereon a date within 90 days from the judgment, so as to show that the bill was not entitled to consideration on the appeal.

Appeal from Culman Circuit Court.

Heard before Hon. D. W. Speak®.

Trial of the right of property between G. -S. Leeth and Kornman, Sawyer & Co. Judgment for plaintiffs and claimant appeals. Submitted on motion to dismiss *312the appeal and to strike the bill of exceptions.

Motion-to dismiss denied, bill of exceptions stricken and judgment affirmed.

F. E. St. -John, for appellant.

The motion to strike the bill of exceptions should be denied, as it has been many times decided that extrinsic evidence is not permissible to show compliance with the statute, or failure to- comply therewith as.respects signing a bill of excep*tion.*— Morris *v.*Brannon, 103 Ala. 602; *Chapman x>. Holder,*54 Ala. 61; *Maddgoe v. Brotóles,*42 Ala. 436;. *India Rubber Go. v. Mitchell,*34 Ala. 314; *Steam- v~ Lehman,*2 South. 708. Parol evidence cannot vary the *record.*— Edinburg *L. M. Go. v. Canterbury,*53 South. 823. The motion to dismiss the appeal comes too late. *—Martin v. Miller,*132 Ala. 629; *Street v. Street,*113-Ala. 333; Rule 41. Counsel discuss the merits of the appeal but it is not deemed necessary to here set it out.

J. B. Brown, for appellee.

Parol evidence is admissible. to show that the bill of exception was not presented and signed as required by the statutes (Section 3019, Code 1907), and hence did not become a part of the rec*ord.*— Edinburg *L. M. Go-, v. Canterbury,*169 Ala. 444; *King v. Hill,*163 Ala. 423; *Smith v. The State,*166 Ala-26; *Rainey v. Ridgetaay,*151 Ala. 532; *Wiley v. The-State,*117 Ala. 158; *L. & N. R. R. Go. v. Malone,*113 Ala. 600. To make it a part of the record on appeal, the bill of exceptions must be presented within 90 days after judgment, and must be signed by the presiding judge within 90 days thereafter. After the expiration.of that time it is not within the competency of the parties by agreement, nor within the' power of the judge by endorsing on the bill any other than the true date of presentation to abrogate or change the terms of the statute. *313*—Montgomery Traction Co. v. Bozeman,*152 Ala. 146; *Lawrence v; Bell,*132 Ala. 308; *Cooley v. U. S. Co.,*132-Ala. 590; *Tisdale v. A. G. L. Co.,*131 Ala. 456, and .authority supra. Counsel discuss the merits of appeal but did not deem it necessary to set it out.

PELHAM, J.

This case is submitted on a motion to dismiss the appeal, a motion to strike the bill of exceptions, on objections to the evidence in support of the motion to strike and on the merits. The motion to dismiss the appeal is not insisted on by appellee in his brief, and will not be considered.

The ground set up by motion for striking, the bill of exceptions is that the bill is not properly a part of the record, for that it was not presented to the judge who presided at the trial within 90 days from the day on which the judgment was entered, as required by statute. The judgment was entered, as appears by the record, on the 18th day of December, 1909, and the bill of. exceptions set out in the record shows by the endorsement of the judge that it was presented on March 15, 191.0, within the time provided by statute (Code, §3019) ; but the appellee sets out in his motion that the bill of exceptions was not in fact presented to the judge until the 4th day of June, 1910, after the expiration of the 90 days allowed by statute for presenting a bill of exceptions. Proof of these facts is made by parol evidence or evidence extraneous from the record without contradiction.

Section 3019 of the Code of 1907 provides; “Bills of exception may be presented at any time within ninety days from the day on which the judgment is entered, and not afterwards.” And further provides: “The judge must indorse thereon and as a part of the bill, the true date of presenting.” The proof offered in support *314of the motion shows the bill of exceptions was not prepared until more than 90 days after the judgment in the case was entered on the 18th day of December, 1909, and was not presented to the judge until the 4th day of June, 1910, and that the indorsement purporting to show a presentation to the judge on the 15th day of March, 1910, was in fact indorsed on the bill on the 4th day of June, 1910, at which time it was first presented to the judge. The proof is without conflict, and conclusive that the bill of exceptions was not presented at any time within 90 days from the day on which the judgment was entered, and that the judge did not indorse on the bill as a part thereof the time date on which the bill was presented to him.

An unbroken line of cases from the Supreme Court since the declaration to that effect in *Kitchen v. Moye,*17 Ala. 394, hold that a strict compliance Avith the statutes relating to presenting and signing bills of exception is essential to give validity to the bill, and that, where there has been a failure to comply, the hill is not a record, and must be stricken from the transcript in the appellate court on *motion.*—Edinburgh-American *L. M. Co. v. Canterbury,*169 Ala. 444, 53 South. 823; *Baker v. Central of Ga. Ry. Co.,*165 Ala. 466, 51 South. 796; *King v. Hill*& *Shafer,*163 Ala. 422, 51 South. 15; *Rainey v. Ridgeway,*151 Ala. 532, 43 South. 843; *An. Elec. and Gas Co. v. Cooper,*136 Ala. 418, 34 South. 931; *L. & N. R. R. Co. v. Malone,*116 Ala. 600, 22 South. 897; and authorities cited in note to section 3019 of the Code of 1907.

The appellant contends that, when the bill as set out in the record shows by the date marked or indorsed on it and signed by the judge that it was presented within the 90 days as provided by statute, parol or extraneous evidence is not admissible to contradict the date so -in*315dorsed for tlie purpose of showing the true date of presentation. The cases cited by appellant in support of his contention go no further on this proposition than to hold that a record on appeal must be complete within itself, and that parol evidence can not be resorted to in support of or to add to a record incomplete on its face, and, when a bill as contained in the record fails to show affirmatively on its face that it was presented or signed within the time to make it a valid bill, parol evidence cannot be heard to validate it. To attack that which affirmatively on its face purports to be a valid part of the' record on the ground that in fact it is not a valid record is a different proposition. The former is an attempt to validate a record affirmatively shown on its face to be invalid, by adding something to it by parol, which the Supreme Court holds cannot be done. *Chapman v. Holding,*54 Ala. 61; *Maddox v.*Broyles, 42 Ala. 602, 15 South. 865; *Edinburgh Land Mfg. Co. v. Can*terbury, 169 Ala. 444, 53 South. 823. The latter proposition candes with it an attack that goes to the existence of the record as a matter of fact, a denial of the real entity of the bill, an offer to prove that the purported record is in fact not a record, and this the Supreme Court, holds may be done by parol proof, or extraneous *evidence.*—L. *& N. R. R. Co. v. Malone,*116 Ala. 600, 22 South. 897; *Rainey v. Ridgeway,*151 Ala. 532, 43 South. 843. Only when properly signed do bills of exception become part of the record in the appellate court, and this court, on proper motion, will inquire whether a bill of exceptions has been signed within the time prescribed by law so as to make it a part of the record.—*Ex parte Walker,*149 Ala. 637, 640, 43 South. 130.

. In discussing the question of- the admissibility of parol evidence to show that a bill incorporated in the record was not in fact signed at a time when the judge had the *316authority or power to act, although on its face it purports to have been properly signed, the court in *L. & N. R. R. Co. v. Malone, supra,*says: “It would seem to be wholly useless to declare that, after a bill has been signed, a judge has no power to alter or modify it, and yet hold that a party is concluded from proving the alteration ; or in holding that a judge has no authority to sign a bill of exceptions after a certain date, and yet hold that any date he may give to the bill of exceptions is conclusive of its truth. The rule which declares that parol evidence is inadmissible to vary or contradict a record does not prohibit the introduction of such evidence when the purpose is to show that a paper writing or instrument which purports to be a record is in fact not a record.”

In passing on this same question of the admissibility' of parol evidence to show that a bill of exceptions incorporated in the transcript was not properly signed so as to make it a valid bill, the Supreme Court in the case of *Rainey v. Ridgeway et al„ supra,*uses this language: “The first contention of the appellant is that this evidence is incompetent, for the reason that it is an attempt to contradict the record, which can never be done by parol evidence. This contention is without merit. The question is not one of an attempt to' contradict the record, but it goes to the denial of the existence of a record. In the absence of a compliance with the requirements of the statutes as to the signing or establishment of a bill of exceptions, a mere incorporation of such bill in the transcript does not constitute it a record.”

The statute (Code, § 3019) requiring a bill of exceptions to be presented within 90 days after judgment is entered, and not afterwards, not having been complied with in this case, the motion to strike the bill from the *317record must prevail, and, the record then containing nothing on which to rest a reversal, as all assignments of error depend on matters contained in the paper purporting to be a bil, which is stricken, the judgment of the court below must be affirmed.

Affirmed.