Aaron v. State, 8 Div. 931
| Citation | 94 So.2d 415,39 Ala.App. 84 |
| Decision Date | 09 April 1957 |
| Docket Number | 8 Div. 931 |
| Parties | W. E. AARON v. STATE. |
| Court | Alabama Court of Appeals |
Leo Roberson, Moulton, for appellant.
John Patterson, Atty. Gen., and Robt. G. Kilgore, Jr., Asst. Atty. Gen., for the State.
The Attorney General has filed a motion to strike the record in this appeal on the grounds that the same was not timely filed in this court in accordance with Supreme Court Rule 37, Code 1940, Tit. 7 Appendix.
The record discloses that this appellant was adjudged guilty of assault with intent to murder on 16 March 1956.
On 4 May 1956 he gave notice of appeal, and filed an appeal bond.
On 25 May 1956, appellant filed a motion for a new trial, which was continued until 1 June 1956, on which day the motion was overruled.
The motion for a new trial having been filed some 69 days after the date of judgment, the court was without jurisdiction to entertain the same; and all proceedings and orders in connection therewith were void and of no effect.
A transcript of the evidence must be filed with the clerk of the lower court within 60 days from the date of appeal, or the day on which a valid motion for a new trial is overruled, whichever is later. Sections 827(1) and 827(4), Title 7, Code of Alabama 1940, Act No. 97, Special Session 1956, approved February 9, 1956.
The motion for a new trial, and all subsequent orders pertaining thereto being of no effect, the time for perfecting this appeal must be reckoned from 4 May 1956.
The transcript of the evidence was not filed with the clerk below until 16 July 1956.
It is obvious that the transcript of the evidence was not timely filed. The motion to strike however is as to the whole record, and not to the transcript of the evidence.
Section 769, Title 7, Code of Alabama 1940, and Supreme Court Rule 37 each provide that the full record be filed in this court within 60 days of the establishment of the transcript of the evidence in the court below.
No objections being filed to the transcript, its correctness is conclusively presumed as of the date of its filing. Section 827(1a), Title 7, Code of Alabama 1940.
The entire record was filed in this court on 19 September 1956, which is more than 60 days from the date of its establishment in the court below.
No extension of time for filing of the record was sought either in the court below or in this court.
It appears therefore that under the statutes and rules of court...
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...268 Ala. 347, 105 So.2d 864; Baxter v. State, 41 Ala.App. 533, 143 So.2d 191, cert. denied, 273 Ala. 704, 143 So.2d 192; Aaron v. State, 39 Ala.App. 84, 94 So.2d 415; Clark v. State, 38 Ala.App. 480, 87 So.2d 669; Lane v. State, 38 Ala.App. 487, 87 So.2d So at the end of September 18, 1969,......
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...rules, and decisional law appertaining necessitate the granting of the motion to strike the transcript of evidence. Aaron v. State, 39 Ala.App. 84, 94 So.2d 415; McDaniel v. State, 39 Ala.App. 157, 96 So.2d 319; Clark v. State, 38 Ala.App. 305, 82 So.2d 805; Eidson v. State, 38 Ala.App. 321......
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