Board of Educ. of Colbert County v. Mitchell
| Citation | 121 So.2d 103,270 Ala. 594 |
| Decision Date | 26 May 1960 |
| Docket Number | 8 Div. 34 |
| Parties | BOARD OF EDUCATION OF COLBERT COUNTY et al. v. Forrest L. MITCHELL et al. |
| Court | Supreme Court of Alabama |
Chas. E. McCutchen, Tuscumbia, for appellants.
Arthur D. Shores, Birmingham, for appellees.
Counsel for appellees prior to submission filed a motion to dismiss this appeal and to affirm the judgment on the grounds: (1) The transcript does not contain an assignment of error. (2) No assignment of error was served upon the appellees. (3) Brief of appellants did not contain any assignment of error.
Supreme Court Rule 1, Code 1940, Title 7, 1955 Cum.Pocket Part, provides:
(Emphasis supplied.)
The requirement that a copy of the assignments of error be served on appellee may be waived, and is waived, when no attention is directed to such failure on the submission of the case in this court. Edge v. Bice, 263 Ala. 273, 82 So.2d 252.
But no waiver of the requirement is present in this case since appellees timely filed their motion to dismiss and affirm. Appellees have filed no brief on the merits.
Appellants have filed an answer to the appellees' motion to dismiss and to affirm the judgment wherein it is averred that the transcript does contain assignments of error; that the rules of this court do not require the service of assignments of error on appellee; that the rules of this court do not require that the appellant's brief contain an assignment of error as such.
The record does contain assignments of error. But there is no certificate of the appellants, or of their counsel, that a copy of the assignments had been served upon appellees or their counsel.
Of course, the appellants are in error in stating that the rules of this court do not require the service of assignments of error on an appellee. The answer does not aver that assignments of error were served on appellees or deny the averments of the motion to dismiss and affirm to the effect that no such assignments...
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National Ass'n for Advancement of Colored People v. State
...the court the questions in controversy.' An assignment of error is an instrument of appellate pleading, Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103; Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639, and only adverse rulings of the trial court are subject to an a......
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Land v. Craig
...of the certificate should work a dismissal of the appeal. Edge v. Bice, 263 Ala. 273, 82 So.2d 252. Cf. Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103; Department of Industrial Relations v. Simms, 39 Ala.App. 525, 104 So.2d 782. In the last two cases cited, co......
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Ewing v. Certain Lands
...284 Ala. 618, 227 So.2d 131 (1969). '(2) An assignment of error is an instrument of appellate pleading, Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103; Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639, and only adverse rulings of the trial court are subject to an a......
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Muery v. Muery
...12 L.Ed.2d 325, had the following to say: 'An assignment of error is an instrument of appellate pleading, Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103; Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639, and Only adverse rulings of the trial court are subject to an......