Franks v. City of Jasper
Decision Date | 05 November 1953 |
Docket Number | 6 Div. 484 |
Citation | 259 Ala. 641,68 So.2d 306 |
Parties | FRANKS et al. v. CITY OF JASPER. |
Court | Alabama Supreme Court |
Chas. E. Tweedy, Jr., and Jim Beech, Jr., Jasper, for appellants.
Elliott & Petree, Jasper, for appellee.
The City of Jasper is a municipal corporation authorized to levy privilege licenses on retail merchants. The governing authority of that city on December 26, 1950, adopted an ordinance, effective January 1, 1951, pertinent parts of which read as follows:
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Luther Franks and Clayborn Guin, as partners, have for several years been engaged in the operation of a general mercantile and grocery business known as Franks & Guin Grocery Company, within the police jurisdiction of the city of Jasper. They were so engaged in the year 1952 but refused to pay the licenses to the city of Jasper as provided by the ordinance referred to above.
The city of Jasper, on August 8, 1952, filed its bill in the circuit court of Walker County, in equity, against Luther Franks and Clayborn Guin, doing business as Franks & Guin Grocery Company, and Luther Franks and Clayborn Guin, individually.
The bill was filed under the authority of Art. 4, Chapter 15, Title 37 of the 1940 Code of Alabama. The pertinent sections of that article are 760, 761, 762 and 767, which read:
notice thereof to be given the respondents; said notice to be in such form as the court may direct and at such hearing upon reasonable cause, to grant a temporary injunction restraining the respondents from further operation or conduct of said business, occupation, trade, or profession, and no bond shall be required of the complainant as a condition thereto. The court shall not grant a temporary injunction unless it has reasonable cause to believe that the respondent owes a debt to the complainant for privilege license or excise tax. The court shall, upon final hearing, if the proof be sufficient, grant a permanent injunction restraining the respondent is herein directed to be done by a temporary injunction. Such injunctions may be dissolved in the manner herein provided.
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Upon the presentation of the bill to the trial court, August 22, 1952, was fixed as the day for the hearing on the prayer for temporary injunction. The record before us fails to disclose that any such hearing was had or that a temporary injunction was ordered.
The respondents' demurrer was overruled on September 5, 1952, whereupon they filed their answers on the same day, which appears to have been the day set for the trial of the cause. The answer, aside from denying all of the material averments of the complaint, averred in substance that the city of Jasper had failed to furnish police and fire protection and sanitary services to the respondents and other persons residing within the police jurisdiction of said city and therefore the exaction of license for the privilege of engaging in business in that territory was unlawful in that such exaction was solely for the purpose of raising revenue.
Testimony was taken orally before the trial court. On the same day the testimony was taken, the trial court rendered a final decree, in pertinent parts as follows:
The total sum of $157.25 which the trial court found to be due the city of Jasper by the respondents included 'the sum of fifty dollars ($50.00) as license for the privilege of operating a rolling store in connection with the operation of respondents' business, together with a penalty as provided for in said license ordinance of ten per cent of the amount of the license for failure to purchase the required license, making a total of fifty-five dollars ($55.00) plus fifty cents (50cents) issuance fee, for issuance of the license for the privilege of operating a rolling store.'
From the decree of September 5, 1952, the respondents perfected their appeal to this court on October 4, 1952.
The cause was submitted here on April 21, 1953. Submission was had on the merits and on motion of appellee, the city of Jasper, to dismiss the appeal.
The only ground of the motion to dismiss the appeal which is insisted upon is that appellants failed to file the transcript in this court within sixty days from the date on which the appeal was taken, as required by § 769, Title 7, Code 1940.
Section 767, Title 37, Code 1940, quoted above, provides that appeals in cases of this kind must be taken within thirty days from the rendition of a final decree. This was done. That section further provides that this court shall have jurisdiction of such appeals as in other equity suits.
Section 769, Title 7, Code 1940, provides that in equity cases the transcript shall be filed in the office of the clerk of this court within sixty days from the date of the taking of the appeal.
The first call of the Sixth Division after the appeal was taken commenced on the fourth Monday in November, 1952 (November 24, 1952)--less than sixty days from the date on which the appeal was taken. The next call of the Sixth Division commenced on the third Monday in April, 1953 (April 20, 1953). See § 22, Title 13, Code 1940.
Appellees filed their motion to dismiss on April 10, 1953. The transcript was filed with the clerk of this court on April 18, 1953, before the commencement of the first call of the Sixth Division held more than sixty days after the appeal was taken.
In the case of McCoy v. Wynn, 215 Ala. 172, 173, 110 So. 129, 130, we held a motion to dismiss the appeal to be without merit under circumstances similar to those of the present case. It was said in the McCoy case, supra, as follows:
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