Bayzer v. McMillan Mill Co.

• Decision Date: 17 May 1893
• Parties: BAYZER ET AL. v. MCMILLAN MILL CO.
• Court: Alabama Supreme Court

13 So. 144

BAYZER ET AL. v. MCMILLAN MILL CO.

Supreme Court of Alabama

May 17, 1893

Appeal from circuit court, Conecuh county; John P. Hubbard, Judge.

Action by Bayzer & Shepherd against the McMillan Mill Company. Defendant had judgment, and plaintiffs appealed. Defendant now moves to dismiss the appeal. Motion granted.

Gamble & Powell and Farnham & Crum, for appellants.

Stallworth & Burnett and James M. Davison, for appellee.

HEAD J.

This cause was tried, and verdict and judgment rendered, at the October term, 1891, of the court below. On the 26th day of March, 1892, the plaintiffs sued out an appeal from the judgment to this court by the filing and approval of security for costs. The transcript was filed in this court, and the cause docketed for the first time, on the 13th day of December, 1892, and on the same day the defendant moved to dismiss the appeal by reason of the facts above stated. The appeal was taken during the session of this court beginning the first Tuesday in November, 1891, and ending the last day of June, 1892. Acts Ala. 1890-91, p. 871. Section 3620 of the Code provides that, if the appeal is taken during the term it must be made returnable to the first Monday of the term next after the expiration of 20 days from the date of the appeal. Rule of practice adopted June 28, 1890 ^[1] (see 89 Ala. xi.,) requires the transcript to be filed in this court by 12 o'clock noon of the first day of the first week during which such case is subject to call in this court; and, if not so filed, the appellant may be taxes with the costs, and such appeal may, in the discretion of the court, be dismissed, on motion of appellee, if made not later than the next Thursday. The court may, however, consider any affidavit or affidavits offered in excuse of noncompliance with this rule, and may in its discretion, decline to impose all or any part of the foregoing penalties. The first call of the third division after the appeal in this case was on Monday, May 16, 1892. So, under the above rule, the transcript should have been filed not later than that day; but it was not filed until that entire term had elapsed and the next succeeding term begun. The case, therefore, is identical in principle with Sears v. Kirksey, 81 Ala. 98, 2 South. Rep. 90, and Winthrow v. Iron Co., 81 Ala. 100, 2 South. Rep. 92. It is impossible to distinguish them. On the authority of those cases, we are compelled to sustain the ...