Ex parte Tsimpides
| Decision Date | 30 March 1961 |
| Docket Number | 6 Div. 550 |
| Citation | 272 Ala. 430,131 So.2d 873 |
| Parties | Ex parte Nick TSIMPIDES et al. |
| Court | Alabama Supreme Court |
Geo. D. Finley and M. B. Grace, Birmingham, for pertitioners.
Lange, Simpson, Robinson & Somerville, Birmingham, for respondent.
Burr, McKamy, Moore & Thomas, Birmingham, for Thomas Meador, amicus curiae.
In this case, there is an original petition for mandamus which seeks to review an order of Judge Robert C. Giles, Judge of the Circuit Court of Jefferson County, dated February 5, 1960.
Petitioners contested an alleged will of their late brother, charles Tsimpides, in the Jefferson County Circuit Court. A jury upheld the will as against the contentions of the petitioners and Circuit Judge Giles denied a motion by petitioners for new trial. Thereupon, petitioners appealed the cause to this court, filing security for costs, with a surety bond, which was approved by the clerk of the circuit. Petitioners then gave notice to Mr. Thomas Meador, who had taken down in shorthand the testimony adduced in the will contest and requested that he transcribe and file his notes of testimony with the clerk of the circuit court so that they might be used on the appeal. Mr. Meador declined to transcribe these notes until his fees therefor were paid in advance. Petitioners subsequently filed a motion with Judge Giles seeking, inter alia, an order requiring the reporter to transcribe and file the testimony as requested without prepayment of the fees.
After a hearing on the motion, the trial court denied the motion and entered the order here in question, the material portion of which is as follows:
'Upon the aspect of the motion requiring the Court Reporter to transcribe the testimony without payment in advance of his charges, it is Ordered that said Reporter promptly proceed to transcribe and file the testimony upon the Contestant-Appellant assuming payment in full therefor when the transcript is ready for filing, by filing with the Clerk of this Circuit Court a bond with sufficient surety to be taken and approved by said Clerk, payable to the said Court Reporter in the maximum sum of $1,000.00, conditioned upon prompt payment by the appellant to said reporter of his lawful fees for his services in preparing and filing such transcript, pursuant to Code of Alabama 1940, Title 7, Section 827(2) (1955 Cumulative Pocket Part), such payment to be made at the time of such filing of the transcript.'
Title 7, § 827(2), 1955 Cumulative Pocket Part, cited in the order, reads as follows:
[Emphasis added.]
It may be well to note at this point that there is no provision for an official court reporter serving the Circuit Court of Jefferson County, in Birmingham, in civil cases at law. Local Acts 1939, p. 175. As we understand the situation, Mr. Meador is a private businessman employed by private contract to render stenographic services in reporting testimony in such cases.
In the hearing on the presentation of the petition for mandamus before this court, it was agreed to waive the issuance of the rule nisi. Accordingly, in behalf of Judge Giles, there has been filed a demurrer to the petition, a motion to strike portions thereof and an answer to the allegations of the petition. The case is submitted in this court on the sworn petition, the demurrer thereto and the sworn answer of the respondent, Judge Giles. Mr. Thomas Meador has appeared as amicus curiae by his attorneys and submitted a brief in opposition to the petition.
While the question does not appear to be raised directly in petitioners' briefs, it seems necessary at the outset to state that Judge Giles' order is in our judgment within the scope of the language and the authorization of the 'assurance' clause of the statute. In the absence of a statutory requirement of assurance, a court reporter, and especially one who, like Mr. Meador in the case at bar, is a private contractor employed for the job at hand, and not a public employee, would be unable to obtain payment for his services until the final disposition of the cause on appeal and the determination of costs and, further, would be forced to bear the risk of uncollectibility of payment from a losing appellee, from whom no security for appeal costs is required. Such indeed appears to have been the situation before 1951.
Prior to 1951, the act abolishing bills of exceptions in certain cases, of which the statute in question is a part, provided, in its material portion, that:
Acts of 1943, No. 461, § 2, p. 424.
By Acts of 1951, No. 886, p. 1529, the statute was amended to read as at present, except that the provision for taxing reporter's fees as costs of appeal was added by Acts of 1953, No. 80, p. 123.
The purpose of the 1951 amendment, we take it, was to rectify the situation described by providing assurance of payment. We consider that Judge Giles' order was a proper application of the statutory purpose and that the requirements imposed by the order are not in excess of the needs for a proper assurance.
Petitioners have in brief contended that it is the custom for the reporter merely to obtain a verbal 'assurance' from counsel for an appellant that the fees will be paid. A personal agreement of this kind is, of course, unobjectionable if it is to the satisfaction of the parties to such agreement. But the purpose of the statute, as we have pointed out, is to provide virtual certainty that the reporter's fees will be paid. An informal promise by counsel might not give that certainty. We see no justification in the statute for compelling a reporter to accept such a promise when it is not satisfactory to him.
We recognize that the statute as applied in the instant case does impose an appreciable burden on an appellant and particularly on an impecunious appellant. But as this court said in Wheeler v. Alabama National Bank of Montgomery, 262 Ala. 36, 76 So.2d 679, 680:
* * *'
Assuming, then, that the statute itself is valid, we conclude that it properly authorizes the order in question.
The Wheeler case, supra, does not appear to have considered the question of the constitutionality of the statute. The question remains, therefore, whether the legislature in seeking to remove the risk and burden from the court reporter has placed an unconstitutional burden on the person who wishes to appeal. It is petitioners' position that the burden thus imposed is repugnant to the provisions of §§ 10 and, 13 of the Constitution of Alabama of 1901 and to those of the 14th Amendment to the United States Constitution.
Section 10 of the Alabama Constitution provides:
'That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.'
Section 13 provides:
'That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.'
This court has consistently held that review by appeal as distinguished from the common law review by remedial and original writs and the general appellate supervision vested in this court by § 140 of our Constitution, is entirely a creature of the legislature. A party has no vested right to an appeal other than what the legislature may care to confer. 'An appeal is taken to an appellate court, not as a vested right, but by the grace of a statute * * * and must be perfected and prosecuted pursuant to the time and manner prescribed * * *.' Lewis v. Martin, 210 Ala. 401, 409, 98 So. 635, 642. See also, Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854; Clary v. Cassels, 258 Ala. 183, 61 So.2d 692; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Coker v. Fountain, 200 Ala. 95, 75 So. 471. '* * * the Legislature can limit, restrict, or abolish the right of appeal so long as it does not attempt to restrict the right of this court to exercise its superintendence and control over inferior tribunals under section 140 of the Constitution.' Ex parte Louisville & N. R. Co., 214 Ala. 489, 108 So. 379, 380; Woodward Iron Co. v. Bradford, supra; Skinner v. Phillips, 257 Ala. 138, 57 So.2d 515.
An example of such limitation, restriction, or condition is the requirement of...
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Rothermel v. Florida Parole and Probation Com'n, AR-333
...16 C.J.S. Constitutional Law § 272(b). Accord City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P.2d 243, 247 (1947); Ex Parte Tsimpides, 272 Ala. 430, 131 So.2d 873 (1961); Marlas v. Virekeos, 14 Ill.App.2d 1, 142 N.E.2d 808 Although there is a constitutional right to appeal "as a matter of......
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Spradlin v. Jordan
...with Rule 10(d), Ala.R.App.P. Cf. Wheeler v. Alabama National Bank of Montgomery, 262 Ala. 36, 76 So.2d 679 (1954); Ex parte Tsimpides, 272 Ala. 430, 131 So.2d 873 (1961), cert. denied, 369 U.S. 804, 82 S.Ct. 644, 7 L.Ed.2d 551 (1962). Having nothing to review, we must affirm the AFFIRMED. ......
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