#### Rainey *v.*Ridgeway, *et al.*

*Contest of Will.*

(Decided May 7, 1907.

43 South. 843.)

3. *Evidence; Parol Evidence; Record.*— A bill of exceptions is not a part of the record, although incorporated in the transcript, until it lias been signed according to law, and parol evidence is admissible to show that it was not signed within the time, and that the order extending the time was invalid.

2. *Courts; Jurisdiction; Territorial Limit,; Propale Judges.*— The judicial powers of judges of probate and their jurisdiction are confined to the territorial limit of the county in which they are elected unless it is otherwise provided in the statute.

3. *Exceptions; Bill of; Extension, of Time.*— An order granting an extension of time for signing a bill of exceptions is a judicial act, and is a nullity when made outside of the territorial limits of the judges’ jurisdiction.

4. *Appeal; Bill of Exceptions; Necessity.*— The decree appealed from must be affirmed when there is no legal bill of exceptions and tlie assignment of errors relate exclusively to matters which can be presented only by bill.

Appear from Tallapoosa Probate Court.

Heard before Hon. James W. Strother, Spedial Judge.

Contest of probate of will between E. B. Rainey, Elia Ridgeway and others. From a judgment for Ridgeway and others, Rainey appeals.

Affirmed.

George A. Horrerr, and L. B. Rainey, for appellant. —No brief came to the Reporter.

Lackey & Bridges, for appellee.

No public officer lias authority to perform any official act outside of the territorial limits of his jurisdiction unless such authority is conferred by *statute.*— State *ex rol. Martin v. Talley,*102 Ala. 25; *Mortgage Co. v.*People, 102 Ala. 241; *Ex parte*Davis, 95 Ala. 9; *Horton v. Elliott,*90 *533Ala. 480; *Ex parte Branch,*63 Ala. 383. The signing of a bill oí exceptions is a judicial act, as is the granting of extension for time of signing. — Authorities supra, *Grider v. Mortgage Co.,*99 Ala. 281. The bill of excop tions must be stricken and the cause *affirmed.*— Cooley *v. U. 8. 8. d L. Co.,*144 Ala. 538. Counsel discuss the appeal on its merits as Avell.

DOWDELL, J.-

This cause Aims heard before Hon. James W. Strother, special judge of probate appointed for that purpose; the judge of probate of Tallapoosa county being disqualified to hear the cause. Motion is made to strike from the transcript Avhat purports to be a bill of exceptions, and this motion is now submitted for our consideration upon an agreed statement of facts. It appears from such agreed statement of facts that 1 bi-hill aa'us signed by- the special probate judge after the expiration of the time fixed by the statute (section 465 of the Code, of 1896), but Avitliin the time of the order of the special judge granting an extension of the time for the signing of the bill. It further appears from such agreed statement of facts that such order of extension AA'as made by the special judge beyond the limits of Tallapoosa county and in the city of Montgomery.

The first contention of the appellant is that this eAOdence 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 recoi'd. A bill of exceptions iuwer becomes a part of the record until it is legally signed by the presiding judge, or, in case of his refusal to sign, it has been established as provided by Iuav. In the absence of a compliance Avith the requirements of the. statutes as to *534tlie sighing or establishment of a bill of exceptions, a mere incorporation of such bill in the transcript does not constitute it a record. Probate judges in this state are elected for each county, and, in the absence of any statute providing otherwise, their judicial powers and functions are confined within the territorial limits of the county to which they are elected. The law is well settled that no public officer has authority to perform any official act outside of the territorial limits of his jurisdiction, unless such authority is given by statute. *—Mortgage Co. v. Peoples,*102 Ala. 241, 14 South. 656; *Ex parte Davis,*95 Ala. 9, 11 South. 308; *Horton v. Elliott,*90 Ala. 480, 8 South. 103; Mechem on Public Officers, § 508. In *Mortgage Co. v. Peoples,*102 Ala. 244, 14 South. 657, it was said by this court, speaking through Stone, C. J.: “The jurisdiction of an officer, elected and appointed, is local. It is confined to the territorial area for which he is commissioned. Within that territorial area, whether large or small, he can perform official functions. Outside of it he is a private person, having no official power or jurisdiction. An act done by him beyond the boundaries of his local jurisdiction, no matter how formal he may make it appear, is a sheer usurpation, having no official validity. And this is true of official trust, from the highest to the lowest.” —1 Am. & Eng. Ency. Law (1st Ed.) 146, note 2; *Share v. Anderson,*10 Am. Dec. 421, 7 Serg. & R. (Pa.) 43; *Bradley v. West,*60 Mo. 33; *Rackleff v. Norton,*19 Me. 274. The order granting the extension of time for signing of the bill was one that the officer under the law Avas not bound to make, but AAas Avholly Avithin his discretion. It was an official act, involving judicial discretion, and therefore a judicial act. In *Grider v. Tally,*77 Ala. 424, 54 Am. Rep. 65, it is said : “Judicial power is authority, vested in some court, officer, or person, to *535liear and determine, 'when the rights of persons or property, or the propriety of doing an act, are the. subject-matter of adjudication.' Official action, the result of judgment, or discretion, is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specified duty arising from fixed and designated facts, is a ministerial act.”— *Flournoy v. City of Jefferson,*17 Ind. 169, 79 Am. Dec. 468; *Tenn. & Coosa R. R. Co. v. Moore,*36 Ala. 371; *Morton v. Comp. Gen.,*4 S. C. 430; *Commissioner v. Smith,*5 Tex. 471; *Life & Fire Ins. Co. v. Wilson,*8 Pet. (U. S.) 291, 8 L. Ed. 949. As said above, the granting of the order of extension involved an exercise of discretion, and Avas therefore in no proper sense a ministerial act but a judicial one.

Our conclusion is.that the order granting the extension, having been made Avithout the territorial limits of the officer's jurisdiction, was a nullity; and it follows that the motion to strike the bill of exceptions must be sustained. As the assignments of error relate exclusively to matters Avhich can be presented only by proper bill of exceptions, and there being no bill of exceptions, the decree appealed from must be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.