Gray v. State ex rel. Atty. Gen.

• Decision Date: 24 June 1965
• Docket Number: 7 Div. 630
• Parties: Arthur D. GRAY et al. v. STATE ex rel. ATTORNEY GENERAL. ,
• Court: Alabama Supreme Court

Page 125

185 So.2d 125

279 Ala. 333

Arthur D. GRAY et al. v. STATE ex rel. ATTORNEY GENERAL.

,7 Div. 630.

Supreme Court of Alabama.

June 24, 1965.

Rehearing Denied April 7, 1966.

Arthur D. Shores and Orzell Billingsley, Jr., Birmingham, Jack Greenberg, Norman C. Amaker and Geo. B. Smith, New York City, for appellants.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for appellee.

COLEMAN, Justice.

From a decree making permanent a preliminary injunction, respondents endeavor to appeal.

The decree was rendered July 1, 1963. Motions for rehearing were denied September 5, 1963. The cause was argued orally in this court and submitted May 26, 1964.

We do not find any appeal bond in the record.

The certificate of appeal recites:

I further certify that Respondents filed cash for cost of appeal, to the Supreme Court, on the 4th day of October 1963, And that _ _ are sureties on the appeal bond.

The certificate does not state the name of any surety on any appeal bond. Supreme Court Rule 38.

It has long been the rule that a deposit of money is not a sufficient security for costs of appeal to this court. § 792, Title 7, Code 1940; Butler v. Foster, 14 Ala. 323; King & Owen v. McCann, 25 Ala. 471; Griswold v. Thornton, 129 Ala. 454, 30 So. 717; Harris v. Barber, 237 Ala. 138, 186 So. 160; American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12.

'The majority of the courts that have considered the question have decided that a deposit of money cannot be given in lieu of an undertaking or bond on appeal where the pertinent statute or rule does not specifically authorize such a deposit.' (65 A.L.R.2d 1137)

S. & S. Builders, Inc. v. Eagle Truck Transport, Inc., 50 Del. 346, 130 A.2d 558; Gordon v. Camp, 2 Fla. 23; Marks v. Waiahole Water Co., 36 Haw. 188; Beckwith v. Kansas City & Olathe Railroad Co., 28 Kan. 484; Alvord & Son v. Mallory, 10 Ky.L.R. 80; State ex rel. Maxwell v. Sevier, (Mo.App.), 179 S.W.2d 492; Naum v. Naum, 101 N.H. 367, 143 A.2d 424, 65 A.L.R.2d 1130; Sommers v. De Ran, 53 Ohio App. 87, 4 N.E.2d 267; Commonwealth v. Sitler, 261 Pa. 261, 104 A. 604; Smith v. Coffin, 9 S.D. 502, 70 N.W. 636; Ringgold v. Graham, Tex.Com.App., 13 S.W.2d 355; Hervey v. Forse, Tex.Civ.App., 253 S.W.2d 701; Brooks v. Epperson, 164 Va. 37, 178 S.E. 787; United States v. Faw, 1 Cranch C.C. 486.

The right to appeal is purely statutory. The provisions of the statute are mandatory and free of ambiguity.

'The appellant not having filed an abbreviated or defective bond or one of any kind so as to invoke the jurisdiction of this court, we are impelled ex mero motu to dismiss this appeal for want of jurisdiction. It cannot be waived. * * *' American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12, 13.

It is ordered that the appeal be dismissed.

Appeal dismissed.

LAWSON, GOODWYN, MERRILL and HARWOOD, JJ., concur. On Rehearing.

PER CURIAM.

Appellants argue that our holding in this case is error because it is contrary to 'prior law,' to 'prior custom and practice,' to 'prior practice and law,' and contrary to the provisions of Tit. 7, § 805, Code 1940.

In view of these contentions, no authority will be cited in this extension of the opinion that was announced after this cause was originally submitted to this court.

An appeal is taken to an appellate court, not as a vested right, but by grace of a statute and must be perfected and prosecuted pursuant to the time and manner prescribed. And 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. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844, 2 Ala.Dig., Appeal & Error, k 1.

This court has uniformly held that an appeal must be taken within the time prescribed by statute (here six months, Tit. 7, § 788), and if not taken within that time, it is jurisdiction and the appeal must be dismissed. This dismissal may be on motion. Wetzel v. Dixon, 227 Ala. 46, 148 So. 857; Williams v. Knight, 233 Ala. 42, 169 So. 871; or ex mero motu, because this court is without jurisdiction to consider the appeal. Irwin v. Weil, 228 Ala. 489, 153 So. 746; Snider v. Funderburk, 209 Ala. 663, 96 So. 928; Boshell v. Phillips, 207 Ala. 628, 93 So. 576.

That brings us to the question of when an appeal is 'taken.' We cite the governing principles from our cases.

An appeal is 'taken,' within the meaning of our statute, when the party desiring to prosecute it has complied with the conditions upon which the law gives the right. The only condition precedent, when the appellant is not exempt from giving bond by statute, is the filing with the proper official, within the time prescribed by statute for taking an appeal, a sufficient undertaking to secure costs. Kimbrell v. Rodgers, 90 Ala. 339, 7 So. 241.

'An appeal is taken only within the provisions of the statute, one of which (is) the filing with the proper officer sufficient security for the costs of the appeal.' Peters v. Chas. Schuessler & Sons, 208 Ala. 627, 95 So. 26, and cases there cited.

The decisions of this court are uniform to the effect that the appeal dates from the proper filing of security of costs.' Danley v. Danley, 263 Ala. 390, 82 So.2d 534, followed in Anderson v. Anderson, 270 Ala. 358, 119 So.2d 31; Ridgeway v. Lovelady, 268 Ala. 503, 108 So.2d 459; Town of Vernon v. Maddox Motor Co., 38 Ala.App. 689, 92 So.2d 920. This security, if sufficient, and if filed within time, must be accepted and approved by the proper officer, and the appeal will not be dismissed if the approval comes after the time prescribed for taking an appeal. Thompson v. Menefee, 218 Ala. 332, 118 So. 587; Wade v. Town of Helena, 270 Ala. 718, 121 So.2d 896.

The manner of taking an appeal is set out in Tit. 7, § 766, Code 1940, and reads:

'Any appeal taken under the provisions of this chapter from the rendition of the judgment or decree, shall be shown in the following manner: (a) When no bond or security is required the filing of a written statement setting out the parties and court, signed by the party appealing or by his or her attorney of record that an appeal is taken from the judgment or decree in the case. (b) By giving security for the costs of the appeal to be approved by the clerk or register, or court. (C) By giving and having approved a supersedeas bond conditioned as required by law.'

In Hildebrand v. First National Bank of Fairfield, 221 Ala. 216, 128 So. 219, we said:

'* * * Section 6101, Code (Tit. 7, § 766), provides the manner of taking an appeal, and section 6127 (Tit. 7, § 788), the time in which it must be done, and, unless taken in such time and manner as there provided, It is not taken at all.' (Emphasis supplied.)

In view of our statutes and our cases, it is obvious that an appeal is 'taken' when the party desiring to appeal, or his attorney, files with the proper officer of the court, (a) a writing which shows a reason for the claim that no bond or security is required and states that an appeal is taken from the judgment or decree in the case; or (b) a writing which shows that the party desiring to take the appeal and his surety or sureties acknowledge themselves as security for costs of the appeal, and on which the approval of the proper officer may be endorsed; or (c) a writing consisting of a supersedeas bond conditioned as required by law and on which the approval of the proper officer may be endorsed.

The statutory period for taking the appeal in this case is six months, and that time expired six months from the denial of the rehearing on September 5, 1963. Gavin v. Hughes, 249 Ala. 126, 30 So.2d 245; Equity Rule 62. From that time to the date of submission, more than eight months later, there was nothing in the transcript to show the giving or approval of any type bond or security for costs.

Appellants state in brief that the register 'approved' the security they gave. No such approval appears in the record. The purported certificate of appeal, the pertinent part of which is copied in our original opinion, shows that the statutory requirement of 'security' for cost of appeal is deleted and the word 'cash' substituted therefor. There is no provision in our law for a Cash bond on appeal to this or any appellate court of this state. (Tit. 11, § 60, Code 1940, relating to nonresidents, applies only to trial courts and not to our appellate courts). In the early case of Butler v. Foster, 14 Ala. 323, this court held that since no statute permitted an officer to receive a deposit of money in lieu of bail, the receipt of $500 in cash in lieu of a bond, as prescribed by statute, was not received by the clerk in the discharge of any official duty prescribed by law, and neither the clerk nor his sureties were liable to the County Treasurer for the money, and it had not become the property of the State or the county.

As stated in our original opinion, 'It has long been the rule that a deposit of money is not sufficient security for costs of appeal to this court.'

But appellants state in brief that they have found two cases where the appellant posted cash for costs on appeal. One case is Williams v. Home Owners' Loan Corporation, 236 Ala. 700, 184 So. 910. There, the appellant made an affidavit that she was a married woman and was unable to give security for costs on appeal, under Tit. 7, § 799. This claim was contested by the appellee by a motion to dismiss the appeal. This court granted the motion conditionally, but granted her sixty days to file proper security for costs. When she failed to do so, the appeal was dismissed. No cash was posted for the costs on appeal.

The other case is Harris v. Barber, 237 Ala. 138, 186 So. 160. But it is different from the instant case. There, appe...