Ex parte Tillery

• Decision Date: 02 August 1927
• Docket Number: 6 Div. 286
• Citation: 114 So. 15,22 Ala.App. 193
• Parties: EX PARTE TILLERY. v. CITY OF TUSCALOOSA. ELLIOTT
• Court: Alabama Court of Appeals

114 So. 15

22 Ala.App. 193

EX PARTE TILLERY.

ELLIOTT v. CITY OF TUSCALOOSA.

6 Div. 286

Court of Appeals of Alabama

August 2, 1927

Rehearing Denied Oct. 4, 1927

Original motion of J.T. Tillery to vacate a judgment for costs of appeal against movant, as surety on bond of appellant in the case of Elliott v. City of Tuscaloosa, 21 Ala.App. 669, 106 So. 916. Motion denied.

RICE, J.

This is an ex parte petition or motion by J.T. Tillery, a surety on the bond of Percy Elliott, who took an appeal from the circuit court of Tuscaloosa county to this court from a judgment of conviction of the offense of violating one of the city ordinances of the city of Tuscaloosa.

The said appeal of said Elliott being dismissed in this court for want of prosecution, an execution for the costs of said appeal was duly issued against petitioner. He is here moving to have the judgment for costs on said appeal vacated and set aside as to himself.

Section 1943 of the Code of 1923 provides that a defendant may appeal to this court from a judgment of conviction in the circuit court and "may give bail, with sufficient sureties, conditioned that he will appear and abide the judgment of the appellate court [etc.]." The record in the case of Percy Elliott v. City of Tuscaloosa, supra, shows that this was done in that case, and that petitioner was one of the sureties on said Elliott's bond. Elliott, the appellant in that case, has not "abided the judgment of this court" until the costs on his appeal for which judgment was rendered are paid. Hence petitioner is bound.

Motion denied.