Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 23 June 1949 |
| Docket Number | 6 Div. 821. |
| Citation | 41 So.2d 585,252 Ala. 532 |
| Court | Alabama Supreme Court |
| Parties | LOUISVILLE FIRE & MARINE INS. CO. v. ST. PAUL FIRE & MARINE INS. CO. |
Rehearing Denied July 15, 1949.
Jos. S. Mead, of Birmingham, for appellant.
Marvin Williams, Jr. and Davies & Williams, of Birmingham, for appellee.
This appeal is from an interlocutory decree of the Circuit Court of Winston County, in Equity, overruling the defendant's demurrers to the bill. The appeal is authorized by Title 7, § 755, Code of 1940.
The decree was entered on the 20th day of September and the appeal was taken on the 5th day of October, 1948, which was in term time, and was returnable under § 790, Title 7, Code of 1940, on December 6, 1948. The respondent Johnson was given notice of the appeal of March 31, 1949, and citation was served on attorney for appellee on April 2, 1949. The record was filed April 19, 1949, and the case was submitted on the regular call of the 6th Div. on April 19, 1949, the day on which the record was filed.
The case was submitted on the motion to dismiss the appeal and on the merits. No point was made in the motion or otherwise relative to the delay in filing the transcript. The grounds of the motion to dismiss the appeal are based on § 801, Title 7, Code of 1940, which provides that citation must be served on the adverse party (appellee) or his attorney of record at least 10 days before the day to which the appeal is returnable, unless otherwise provided.
The insistence of appellant is that the provisions of the statute as to the time of service before the appeal is returnable are mandatory and, therefore, the appeal should be dismissed. An examination of the authorities cited discloses that the courts have held that the service of a citation on the adverse party is essential to the jurisdiction of the appellate court and unless notice is so served the appellate court has no jurisdiction. To that extent the statute is mandatory, but as to the time specified unless some injury or inconvenience in shown, the court will not dismiss an appeal merely because the citation was served later than the time when the appeal is returnable. Maya Corp. et al. v Smith, 239 Ala. 470, 196 So. 125. It appears from the record that the citation on the appellee was served more than 10 days before the case was subject to call. We are therefore, of opinion that the motion to dismiss the appeal is not well taken and it will be overruled.
The bill is one filed by appellee seeking a declaratory judgment or decree as to whether the complainant or respondent, or both, is liable to pay the loss sustained by Johnson, the said insured. The facts and the amount of the loss are not in controversy.
The facts alleged as constituting the justiciable controversy between the parties are that on the respective dates May 10 1947, and January 6, 1948, the respondent issued policies insuring Johnson's household goods from loss by fire, the last mentioned policy being issued in renewal of the first and for the same amount covering a period of one year from the date of issuance. The bill further alleges that on towit 'December 17, 1947, complainant, at the request of respondent W. O. Johnson did write and prepare for delivery a policy of fire insurance to the respondent W. O. Johnson for a term of one year in the amount of $2500.00 covering said household goods of said W. O. Johnson against loss or damage by fire. Complainant further avers that at said time it was the intention of W. O. Johnson to cancel the policies then held by him and issued by Louisville Fire & Marine Insurance Company. Complainant further avers that it is informed and believes and upon such information and belief states the facts to be that respondent W. O. Johnson was unable to cancel said policies of insurance with the Louisville Fire & Marine Insurance Company. Complainant further avers that on, towit, December 17, 1947, respondent W. O. Johnson did request the agent of your complainant to issue a policy to him covering said household goods. Complainant further avers that subsequent thereto and on, towit, December 25, 1947, the said W. O. Johnson did request the agent of your complainant to cancel said policy which had been written and prepared by complainant's agent. Complainant further avers that at said time said policy which had been written and prepared ready for delivery to the said W. O. Johnson was cancelled by mutual consent. Complainant further avers that the policy prepared by your complainant's agent as never actually delivered to the said respondent W. O. Johnson but was always held by complainant's agent at Haleyville, Alabama. Complain...
To continue reading
Request your trial
-
Travelers Cas. & Sur. Co. of Am. v. Netherlands Ins. Co.
...Services Automobile Assn. v. Royal–Globe Ins. Co., supra, 511 F.2d at 1094. See, e.g., Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 535, 41 So.2d 585 (1949) (declaratory judgment action “well filed” because “the policies of the two insurance companies ......
-
American Auto. Ins. Co. v. English
...Ala. 31, 170 So. 59, as has the right to a judicial declaration of the priorities of liability. Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So.2d 585; Farm Bureau Mut. Automobile Ins. Co. v. Preferred Acc. Ins. Co., D.C., 78 F.Supp. 561; Maryland C......
-
Opinion of the Justices
... ... 249, 174 So. 516; Washington Nat ... Ins. Co. v. Board of Review, N.J., 64 A.2d 443. It is ... ...
-
Mountain West Farm Bureau Mut. Ins. Co., Inc. v. Hallmark Ins. Co.
...loss, and in the event of the liability of both, then the amount each should pay.' Citing Louisville Fire & Marine Insurance Company v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So.2d 585. Where the policies of different companies covered the same vehicle, it was held in St. Paul Fi......