Boyett v. Frankfort Chair Co.

• Citation: 152 Ala. 317,44 So. 546
• Parties: BOYETT ET AL. v. FRANKFORT CHAIR CO.
• Decision Date: 02 July 1907
• Court: Alabama Supreme Court

44 So. 546

152 Ala. 317

BOYETT ET AL. v. FRANKFORT CHAIR CO.

Supreme Court of Alabama

July 2, 1907

Appeal from Chancery Court, Covington County; W. L. Parks Chancellor.

Bill between J. E. Boyett and others and the Frankfort Chair Company. From the decree, Boyett and others appeal, and the company moves to dismiss the appeal. Motion overruled judgment reversed, and cause remanded.

Foster Samford & Prestwood, for appellants.

A. L. Rankin, for appellee.

DOWDELL J.

The decree appealed from settles and determines the equities of the bill, and is therefore a final decree, from which an appeal will lie. The decree was rendered on the 25th day of January, 1906, and appeal was taken on the 25th day of January, 1907. The statute (section 436 of the Code of 1896) provides in such cases for the taking of the appeal "within one year from the rendition of the judgment or decree." In computing the time under the statute (section 11 of the Code) the day of the rendition of the decree must be excluded, and, when so computed, the present appeal was taken in time. L. & N. R. R. Co. v. Watson, 90 Ala. 68, 8 So. 249; Dickson v. Frisbee, 52 Ala. 165, 23 Am. Rep. 565; Field v. Gamble, 47 Ala. 443; Cawlfield v. Brown, 45 Ala. 552. The motion to dismiss the appeal must be overruled.

The final decree was rendered on a submission of the cause on the original bill and decree pro confesso. The decree pro confesso was taken on personal service. The service on the respondent corporation was as follows: "Executed by handing the defendants, W. A. Woodham as president of said corporation, J. E. Boyett, and J. E. Weaver a copy of the within on the 28th day of July, 1905. * * * J. H. Stokes, D S." The record fails to show that any proof was made that W. A. Woodham, the person served, was the president of the defendant corporation, or a person on whom service could be legally had. The decree pro confesso was taken before the register, and it recites in the body of it: "And it being made known to the register that the party upon whom service was made for the defendant corporation was such agent as shown by the sheriff's return at the time of such service." There is a wide difference between having a thing made known, and having legal proof made of the thing. The character of the person served might be made known to the register by the unsworn statement of some person. This falls far short of the requirement of the law in such cases. The failure of the record to show that proof was made to the satisfaction of the register that the party...