Bedwell v. Dean, 7 Div. 932.

• Citation: 221 Ala. 224,128 So. 389
• Decision Date: 15 May 1930
• Docket Number: 7 Div. 932.
• Parties: BEDWELL ET AL. v. DEAN ET AL.
• Court: Supreme Court of Alabama

128 So. 389

221 Ala. 224

BEDWELL ET AL. v. DEAN ET AL.

7 Div. 932.

Supreme Court of Alabama

May 15, 1930

Appeal from Circuit Court, Cleburne County; R. B. Carr, Judge.

Bill in equity by R. L. Bedwell and others against Mrs. A. A. Dean and others. From a decree dismissing the bill, complainants appeal.

Motion to dismiss appeal overruled.

Chas F. Douglass, of Anniston, for appellants.

Bibb Field, Field & Woolf, of Anniston, for appellees.

FOSTER J.

The submission in this court is only on motion to dismiss the appeal.

The facts material to the question are that a final decree in equity was entered October 17, 1928, denying relief to complainants and dismissing their bill.

They sought to take an appeal to this court by filing bond in the form of a supersedeas bond conditioned as provided by section 6132, Code. In its form as approved, it was filed April 17 1929. This was the last day of the six months in which they had the right to appeal. The bond was not approved until the next day, April 18th. It was approved on that day in the form and with the sureties as filed on April 17th.

Appellees base their motion on the fact that the appeal was not perfected until the bond was approved because it was a supersedeas bond, and that when an appeal is taken by the execution of such a bond, subdivision (c), section 6101 Code, requires that the approval within the six months is a prerequisite. They distinguish the language of subdivision (b) from that of (c). Subdivision (b) provides for appeals by "giving security for the costs of the appeal to be approved by the clerk, or," etc.; subdivision (c) "By giving and having approved a supersedeas bond conditioned as required by law." They claim that the language of this statute is imperative that a supersedeas bond must be approved in six months, and that the rule pertaining to security for costs is different and the construction placed upon the effect of a later approval of that nature of appeal bond does not apply here. It is settled that the appeal is perfected when a good and sufficient security for costs is filed, though not approved until after the expiration of the time for taking an appeal. Thompson v. Menefee, 218 Ala. 332, 118 So. 587; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Cochran v. State, 206 Ala. 75, 89 So. 278; Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363.

The same reasoning applies to the approval of a supersedeas...