Blackford v. Hall Motor Exp., Inc.
| Decision Date | 28 September 1972 |
| Docket Number | 6 Div. 674 |
| Citation | 289 Ala. 391,268 So.2d 5 |
| Parties | Frank BLACKFORD, as Trustee, etc. v. HALL MOTOR EXPRESS, INC. |
| Court | Alabama Supreme Court |
John W. Cooper and James H. Weaver, Jr., Birmingham, for appellant.
John P. Carlton, Birmingham, for appellee.
This is an appeal from a final judgment of the Circuit Court of Jefferson County.
Submission was on motion and on merits.
Appellee has filed a motion to dismiss the appeal, the effect of which is that the transcript of the record was not timely filed in this court.
Before we come to a consideration of the merits of the motion to dismiss, we will delineate those events which we deem pertinent to a determination of the question raised by the motion.
Judgment was rendered on March 29, 1968, in favor of appellee, the defendant below. On April 26, 1968, the plaintiffs below filed their motion for new trial. Following a number of continuances, the trial court on July 30, 1968, rendered a judgment overruling plaintiffs' motion for a new trial. On January 30, 1969, the last day on which an appeal could have been taken, one of the plaintiffs, Frank Blackford, as Trustee in Bankruptcy of the Estate of John Bruce Welden, Sr., doing business as Jupiter Cartage Company, took an appeal by filing security for costs of appeal. See § 788, Title 78 Code 1940; Grice v. Taylor, 273 Ala. 591, 143 So.2d 447; Boyett v. Frankfort Chair Co., 152 Ala. 317, 44 So. 546.
The trial court granted extensions of time for the filing of the transcript of the evidence up to and including September 8, 1969. That transcript was filed by the court reporter in the office of the circuit clerk on September 8, 1969, the last day for filing.
The appellant's 'Objections to Transcript' was presented to the trial court on September 18, 1969, on which day the court set October 17, 1969, as the date on which such objections were to be heard.
The 'Objections to Transcript' was filed in the office of the circuit clerk on September 19, 1969.
On October 17, 1969, the trial court entered an order continuing the hearing on appellant's 'Objections to Transcript' to October 31, 1969. The transcript does not show any further order continuing the hearing to a date after October 31, 1969.
The following entry or order was endorsed on the motion by Judge Deason, the trial judge, on June 4, 1971:
On June 10, 1971, the defendant, appellee here, filed in this court its motion to dismiss the appeal. After making reference to the events to which we have alluded above, the defendant alleged:
'WHEREFORE, defendant respectfully shows unto the Court that:
'(a) The transcript of evidence (sic) (the record) in this cause was due to be filed on or before the 60th day following September 8, 1969, the date when the transcript of evidence was filed in the Circuit Court since no objections to the transcript of evidence were filed within the time allowed by Title 7, Section 827 (1a), Code of Alabama 1940, Recompiled 1958.
'(b) That even if the plaintiffs' pleading entitled 'Objections to Transcript' be considered as a proper objection to the transcript under the terms of Title 7, Section 827(1a), that the hearing of the objections and the ruling of the Court thereon were not concluded within a period of 90 days from the date of the taking of the appeal, and no extension of this period was sought from or granted by the Trial Court.
'Upon the foregoing premises, defendant respectfully prays that this Court will enter an order dismissing the appeal in said cause, and taxing the costs thereof to plaintiffs.'
On June 14, 1971, the appellant filed his 'Reply to Motion to Dismiss Appeal.'
On July 26, 1971, before any action was taken by this court on the motion to dismiss the appeal, the trial court placed the following endorsement on the 'Objections to Transcript':
On August 10, 1971, this court fixed August 18, 1971, as the day on which to hear the motion to dismiss the appeal filed by the appellee, the defendant below, on June 10, 1971.
On August 13, 1971, the appellant filed an amendment to its previously filed 'Reply to Motion to Dismiss Appeal' by adding:
'. . . the following alternative to their prayer to make their Reply also a Motion to Extend Time For Filing Record pursuant to Rule 37 of the Rules of the Supreme Court:
'In the alternative, your Plaintiffs-Appellants (sic) pray that, under the facts and circumstances stated above, this Honorable Court will, pursuant to Rule 37 of the Rules of the Supreme Court, extend the time for filing the Record in this cause to and including September 20, 1971, and if your Plaintiffs-Appellants (sic) are mistaken in their prayer, they pray for such other and different relief to which they are entitled in the premises.'
Thereafter, on August 17, 1971, the appellant filed his second amendment to his 'Reply to Motion to Dismiss Appeal.'
On August 18, 1971, this court determined that the motion to dismiss the appeal should be presented to this court at the time the case was submitted on the merits.
The transcript of the record, accompanied by pertinent exhibits, was filed in this court on September 20, 1971, the last day requested by the appellant for filing and the sixtieth day after July 21, 1971, the day on which the trial court, in its order of July 26, 1971, fixed as the day on which the transcript of the evidence was established. As before indicated, the cause was submitted in this court on motion and on merits. The submission on the motion to dismiss included, of course, the responses filed by appellant to the motion to dismiss. The date of submission was December 10, 1971.
As previously shown, the appeal was taken on January 30, 1969. Accordingly, in the absence of an extension of time for filing, the transcript of the Evidence should have been filed by the court reporter with the circuit clerk within sixty days thereafter, the appeal having been taken after the ruling on appellant's motion for a new trial.--ss 1 and 6 of Act No. 461, approved July 12, 1943, General Acts 1943, [289 Ala. 395] p. 423, Act No. 97, approved February 9, 1956, Acts 1956, Vol. I, p. 143; § 2 of Act No. 461, Supra, Act No. 886, § 2, approved September 12, 1951, Acts 1950-51, Vol. II, p. 1527; Recompiled Code 1958 (Unofficial), Title 7, §§ 827(1), 827(1a) and 827(4).
(Section 827(1), Supra, provides for the reporter to file the transcript of the evidence with the clerk within sixty days from the date on which the appeal was taken, or within sixty days from the date of the court's ruling on the motion for a new trial, whichever date is later. Section 827(4), Supra, is to like effect but contains the provision that 'this period may be extended by the trial court for cause.'
Section 827(1a) provides as follows:
(Emphasis supplied)
As previously shown, the trial court extended the period of time within which the court reporter could file the transcript of the evidence and it was filed within the period of that extension, on September 8, 1969.
Here, the 'Objections to Transcript' of the evidence was not filed with the clerk until the eleventh day after the transcript of the evidence was filed. True, the 'Objection to Transcript' was presented to the trial judge on the tenth day and an order was entered by him on that day setting a hearing on a day in the future. But under decisions of this court and of the Court of Appeals, the presentation of the 'Objections to Transcript' to the trial judge and the obtaining of an order thereon was not tantamount to a filing with the clerk.--Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716; Colburn v. State, 40 Ala.App. 248, 112 So.2d 800.
The cases last cited did not deal with the filing of objections to a transcript of evidence, but with the filing of motions for new trial, but the rationale of the holdings in those cases necessitates the conclusion that the 'Objections to Transcript' was not timely filed.
In Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 26 Ala.App. 136, 155 So. 710, the trial judge, a resident of Lee County, had made timely orders continuing the hearing on a motion for a new trial in a case tried in Tallapoosa County, within his judicial circuit. None of these orders was filed with the clerk in Tallapoosa County or entered in the minutes within the time such orders were due to be made, but were filed afterwards.
On appeal the Court of Appeals held that the orders of the trial judge continuing the motion made in a county other than the county of trial and not filed with the clerk or made...
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