American Federation of Musicians v. Moss
| Decision Date | 03 September 1964 |
| Docket Number | 3 Div. 142 |
| Citation | 277 Ala. 169,168 So.2d 12 |
| Parties | AMERICAN FEDERATION OF MUSICIANS v. Kenneth MOSS. |
| Court | Alabama Supreme Court |
John P. Kohn and Hugh Maddox, Montgomery, for appellant.
Goodwyn & Smith, Montgomery, for appellee.
This is an appeal (authorized by § 757, Title 7, Code of Alabama, 1940) from a decree of the circuit court of Montgomery County, in equity, dated April 16, 1964, denying a motion by appellant to dissolve a temporary writ of injunction, ordered on fiat of the trial court ex parte and without a hearing.
The injunction orders appellant to remove the name of appellees from its National Defaulters List, and also restrains it 'from circularizing or causing to be circulized (sic) any magazine, periodical, letter or other communication which contains a statement that Kenneth Moss and the Diplomat Inn have been placed on the National Defaulters List * * *.'
It appears from the record filed with this court that appellant deposited with the register of the circuit court of Montgomery County the sum of $200.00 in cash as security for costs of this appeal. This deposit was recited to be in lieu of an appeal bond, 'and shall be in lieu of said bond until such time as an appeal bond is filed.'
We have held that the provisions of § 7250, Code of Alabama, 1923 (§ 60, Title 11, Code of Alabama, 1940), allowing money to be deposited with the clerk or register, have application only to trial courts and not to appellate courts. Harris v. Barber, 237 Ala. 138, 186 So. 160(3), and other cases there cited. Therefore, the deposit so made by appellant does not meet the mandatory demand of § 792, Title 7, Code of 1940, requiring an appeal bond.
Compliance with the mandatory provisions of § 792, supra, is jurisdictional, and without such bond this appeal is not perfected. Journequin v. Land, 235 Ala. 29, 177 So. 132(3).
The appeal here undertaken must be perfected within thirty days following the decree overruling the motion to dissolve. Gordon v. Central Park Little Boys League, 270 Ala. 311, 119 So.2d 23(5); Francis v. Scott, 260 Ala. 590, 72 So.2d 93(4); Code of Alabama, 1940, Title 7, § 757.
Section 806, Title 7, Code of Alabama 1940, regulating dismissal of appeals when no appeal bond has been filed, has no application where the time for appeal, as here, has expired. The giving of an appeal bond now would serve no useful purpose. Rosser v. Rosser, 262 Ala. 38, 76 So.2d 781(2).
We held in Rosser v. Rosser, supra, as follows:
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Gray v. State ex rel. Atty. Gen.
...25 Ala. 471; Griswold v. Thornton, 129 Ala. 454, 30 So. 717; Harris v. Barber, 237 Ala. 138, 186 So. 160; American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12. 'The majority of the courts that have considered the question have decided that a deposit of money cannot be given ......
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Finley v. Pless
...made in Gray v. State ex rel. Attorney General, 279 Ala. 333, 185 So.2d 125 (1966), which followed American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12, (1964), but I think the opinions in Gray and American Federation of Musicians v. Moss, are so incorrect that they should b......
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Rogers v. Singleton
...costs of appeal. Gray v. State, 279 Ala. 333, 185 So.2d 125; Whiteside v. McGuire, 281 Ala. 86, 199 So.2d 164; American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12. For the reasons stated we are obliged to hold that nothing occurred in this case to transfer jurisdiction from......
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Greene v. County Bd. of Educ. of Calhoun County
...to this court that compliance with the mandatory provisions of § 792, Title 7, Code 1940, is jurisdictional. American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12; Gray et al. v. State, 279 Ala. 333, 185 So.2d The appeal here to the Commission is purely statutory and is taken......