Donald v. Cotton States Tire & Rubber Co.

• Decision Date: 19 May 1921
• Docket Number: 6 Div. 415
• Citation: 206 Ala. 88,89 So. 296
• Court: Alabama Supreme Court
• Parties: DONALD et al. v. COTTON STATES TIRE & RUBBER CO.

89 So. 296

206 Ala. 88

DONALD et al. v. COTTON STATES TIRE & RUBBER CO.

6 Div. 415

Supreme Court of Alabama

May 19, 1921

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Petition of C.J. Donald and J.N. Carmicheal, as sureties on a forthcoming bond of the Fairfield Tire Company, for writ of probihition restraining the judge of the municipal court, the constable and the Cotton States Tire & Rubber Company from executing a fieri facias, on the grounds of want of jurisdiction in the court to render the judgment on which same is based. From a judgment denying the writ, the petitioners appeal. Appeal dismissed.

C.B. Powell and Luther Patrick, both of Birmingham, for appellants.

Clarence Mullins, of Birmingham, for appellee.

THOMAS, J.

The petition was for writ of prohibition against plaintiff Cotton States Tire & Rubber Company, Thomas Lea, as judge of the municipal court of Birmingham, and J.E. Matlock, as constable of precinct 12 in Jefferson county.

The judgment sustaining demurrer to the petition was rendered on November 13, 1920, and the appeal taken and perfected on March 25, 1921--more than 30 days after the final judgment was rendered. Code, § 4866; Wells Amusement Co. v. Eros, 204 Ala. 239, 85 So. 692; Shackleford v. State, 204 Ala. 362, 85 So. 786; City of Birmingham v. Sou. Bell Tel. Co., 203 Ala. 251, 82 So. 519. The statute is mandatory. Lusk v. Capehart, 129 Ala. 599, 30 So. 31; State ex rel. Crow v. Crook, Judge, 123 Ala. 657, 27 So. 334; Ireland v. Brown, 6 Ala.App. 235, 60 So. 559. The court is without jurisdiction to consider this appeal, nothing being presented for review. It follows that the appeal is dismissed.

Appeal dismissed.

ANDERSON, C.J., and McCLELLAN and SOMERVILLE, JJ., concur.