Hand v. Thornburg

• Decision Date: 25 August 1982
• Citation: 425 So.2d 467
• Parties: Lloyd W. HAND v. Robert L. THORNBURG, D.M.D. Civ. 3251.
• Court: Alabama Court of Civil Appeals

Page 467

425 So.2d 467

Lloyd W. HAND v.Robert L. THORNBURG, D.M.D.

Civ. 3251.

Court of Civil Appeals of Alabama.

Aug. 25, 1982.

Rehearing Denied Oct. 6, 1982.

Certiorari Denied Jan. 28, 1983

Alabama Supreme Court 82-27.

George M. Higginbotham, Bessemer, for appellant.

Wade H. Morton, Jr., Columbiana, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns the sufficiency of a bond for costs in order to perfect an appeal from a district court civil judgment to the circuit court.

On March 3, 1982the district court rendered a judgment in the amount of $2,671.09 in favor of Dr. Thornburg and against Mr. Hand.Nine days later, upon a form authorized and promulgated by the Administrative Office of Courts, Mr. Hand gave notice of appeal to the circuit court from such judgment.The following was contained at the bottom of that form:

"SECURITY FOR COSTS

"We acknowledge ourselves security for costs of appeal.We hereby waive our right of exemption as to personal property under the Constitution of the Laws of Alabama.

"Date Executed 3-12 ,        1982   s/ George M. Higginbotham
                               -----           --  --------------------------
                                                   Signature of Attorney
                "Date Filed March 12 ,       1982   s/ Lloyd W. Hand
                            ---------          --  --------------------------
                                                   Signature of Surety
                  s/ Kyle Lansford                  s/ Jane Higginbotham
                ---------------------------        --------------------------
                Signature of Clerk/Register        Signature of Surety"
                

Except for the dates and four signatures, the balance of the form was printed.As to the three signatures appearing on the right side thereof, the top signature thereon was that of Mr. Hand's attorney.Mr. Hand printed his name on the middle line and the bottom signature is apparently the signature of the attorney's wife.

Dr. Thornburg filed a motion to dismiss the appeal upon the primary ground that it was improperly taken in that no legally sufficient bond for costs was given or filed in the cause.The learned trial court granted that motion.

It is essential that we discuss those essential requirements of an appeal from a civil judgment of the district court(other than from a small claims judgment) to the circuit court.First, the party taking the appeal must pay the docket fee for the new filing in the circuit court or be excused from such payment because of substantial hardship. §§ 12-19-70 and -71, Code 1975;Rule 7,Alabama Rules of Judicial Administration.Second, in order to perfect his appeal to the circuit court, it was necessary that Mr. Hand file in the district court a notice of appeal within fourteen days from the date of the judgment, or of the denial of any post-trial motion, "together with security for costs as required by law or rule."§ 12-12-70(a),Code 1975.No security for costs as to such appeals is provided by statute, but, by rule 62(dc)(5),Alabama Rules of Civil Procedure, the appealing party is, thirdly, required to file a "bond for costs or affidavit of substantial hardship, approved by the court, in lieu of said bond."That is the entire and sole provision as to any security for costs as to such an appeal.That bond for costs means that security is required for all of the costs of appeal, including those incurred in the district court and not just the costs in the circuit court.Clary v. Cassels, 258 Ala. 183, 61 So.2d 692(1952).Oddly enough, there is no requirement that the bond for costs be approved by any court official.Neither is there a saving clause as to such bond for costs as exists in the Alabama Rules of Appellate Procedure, which have no application to an appeal from the district court to the circuit court.

Here, the circuit court docket fee was paid by Mr. Hand and his notice of appeal was timely filed.The question before us is whether the bond, as executed, was sufficient.It is Dr. Thornburg's contention, through an exceptionally scholarly brief filed by his counsel, that the bond was faulty since Mr. Hand signed as his own surety and not as the principal thereon, citing Carr v. Samuels, 285 Ala. 170, 229 So.2d 920(1970).He also contends that there is a vast difference between a "bond for costs" and "security for costs," but no citation of Alabama authority is given as to any distinction in those two terms.Our research has revealed no definition of either term by an Alabama court.21 Ala. Digest, Words & Phrases.

"Security for costs" is defined as the "[p]ayment into court in the form of cash, property or bond by a plaintiff or an appellant to secure the payment of costs if such person does not prevail ...."(Emphasis supplied).Black's Law Dictionary 1217 (5th ed. 1979).A cost bond or bond for costs is therein defined to be "a bond given by a party to an action to secure the eventual payment of such costs as may be awarded against him.A bond which may be required of an appealing party...