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122 Ala. 439

Ewing v. Wofford

Supreme Court of Alabama

Decided November 15, 1898

Supreme Court of Alabama · decided 1898-11-15

Tried before the Hon. J. A. Bilbiio. On April 10, 1897, the appellee, Thomas J. Wofford, Jr., filed in the circuit court of Etowah county, a motion asking the court to set aside the sale of certain lands made by the sheriff under the levy of an execution on March IS, 1895, -which execution was issued on a judgment recovered by the appellant against the movant, alleging in said motion that prior to the levy of said execution, the movant had filed in the probate office of…

Relies on Ex parte Highland Avenue & Belt Railroad · Connoly v. Ala. & Tenn. Rivers Railroad · David v. David's Adm'r

Good law ✅— No negative treatment on recordhow we know

Decided 1898-11-15

How this case has been cited

Cited by 12 later decisions — most recently November 1933

12 state decisions

6018981900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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TYSON, J.

¶1— An examination of the transcript in this case discloses that the motion inserted therein Avas upon the motion docket, and it nowhere appears in the bill of exceptions, or that it was enrolled upon the records of the court. This court has uniformly held that the motion docket of the circuit court is not a record of that court, and that the only method by AAdiich the ruling of the lower court upon a motion can be reviewed by this court, is by incorporating the motion in a bill of exceptions, or by having the transcript sIioav that it Avas enrolled upon the records of the circuit court by an order thereof. — Rule of Practice, No. 2, Code, 1896, p. 1195 (Code, 1886, p„.-807) ; Ex parte Highland Ave. & Belt Railroad Co., 105 Ala. 221; Richmond & Danville Railroad Co. v. Jones, 102 Ala. 212; Lienkauff & Strauss et al. v. Tuscaloosa Sale & Advancing Co., 99 Ala. 619; David v. David’s Admr., 66 Ala. 139; Waring v. Gilbert, 25 Ala. 295. The fact, as insisted by appellant, that a copy of the motion appears in two other places in the transcript can avail him nothing, since these two copies are the ones issued and served upon the respondents, and *441should have appeared iu the bill of exceptions. — James et al. v. Moseley et al., 47 Ala. 299; Barclay’s Admr. v. Barclay, 42 Ala. 345; Connoly v. Ala. & Tenn. Rivers Railroad Co., 29 Ala. 373, and authorities cited.

¶2The judgment entry in the transcript refers to the motion, but fails to set out the grounds thereof. There is not enough recited in it for this court to determine what issues were presented by the motion.

¶3As we are precluded under the authorities cited above from considering the motion, we are unable to determine whether the evidence recited in the hill of exceptions was admissible under the issues presented to the circuit court for decision, or whether it was sufficient to support the judgment. For the same reason we are unable to say there was error in granting the motion as shoAvn by the judgment entry.

¶4Judgment affirmed.

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