Duke v. State
| Decision Date | 26 July 1956 |
| Docket Number | 5 Div. 633 |
| Citation | 264 Ala. 624,89 So.2d 102 |
| Parties | Napoleon DUKE v. STATE of Alabama. |
| Court | Alabama Supreme Court |
A. D. Redden, Tallassee, for appellant.
John Patterson, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
The appeal is on the record proper without a transcript of the testimony. When so, the only question presented for review is the regularity of the proceedings in the circuit court. Harper v. State, Ala., 88 So.2d 788.
But appellee has moved to dismiss the appeal for appellant's failure to comply with Supreme Court Rule 37, Revised Rules effective June 1, 1955 and amended February 17, 1956. The pertinent part of the rule, which was not affected by the amendment, reads:
The verdict, judgment and sentence of the court were on July 14, 1955. A motion for a new trial was duly presented and seasonably continued until it was overruled on November 2, 1955. Notice of appeal was given on July 14, 1955, and the certificate shows that this appeal was taken on November 3, 1955, the day following the overruling of the motion for a new trial.
No extensions of time for filing the transcript of the record were requested in the court below or in this court, and no attempt was made to procure or to establish a transcript of the evidence in the court below as provided by those acts now codified as Title 7, §§ 827(1) to 827(5), Code of 1940, Pocket Part. Therefore, under Rule 37, there being no transcript of the evidence and no attempt to procure one, the transcript of the record should have been filed in this court within sixty days after November 3, 1956, or by January 2, 1956. It was filed here on June 28, 1956.
It follows that the motion to dismiss the appeal for noncompliance with Supreme Court Rule 37 should be granted. The case of Lane v. State, Ala.App., 87 So.2d 668 where the appeal was dismissed, is analogous to the instant case, the chief difference being that...
To continue reading
Request your trial
-
Relf v. State, 5 Div. 671
...under Supreme Court Rule 37, which would have been February 19, 1957. Our holding here is distinguishable from that in Duke v. State, 264 Ala. 624, 89 So.2d 102. There, the appeal was on the record proper without a transcript of the evidence, and we held that since there was no effort to se......
-
Lovelady v. Thomas
...court as required by Supreme Court Rule 37, as amended, (263 Ala. XXI). Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891; Duke v. State, 264 Ala. 624, 89 So.2d 102. The transcript of the record should have been filed here December 26, 1961. (That is sixty-one days, but within the time prescri......
-
Holman v. Baker, 4 Div. 155
...below. There is no rational basis for allowing more than 60 days to prepare the record proper.' Appellee cites the cases of Duke v. State, 264 Ala. 624, 89 So.2d 102, and Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891, and supporting his contention above We have examined both cases. In the ......
-
Town of Vernon v. Maddox Motor Co., 6 Div. 332
...appeal must be dismissed for failure to file the transcript of the record in time. Lane v. State, Ala.App., 87 So.2d 668; Duke v. State, 264 Ala. 624, 89 So.2d 102; Striplin v. Kitts, Ala.App., 89 So.2d 225; Clark v. State, Ala.App., 87 So.2d Appellant filed answer to appellee's motion to d......