Harris v. Barber, 6 Div. 416.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, Justice.
• Citation: 237 Ala. 138,186 So. 160
• Parties: HARRIS v BARBER.
• Decision Date: 26 January 1939
• Docket Number: 6 Div. 416.

186 So. 160

237 Ala. 138

HARRIS v BARBER.

6 Div. 416.

Supreme Court of Alabama

January 26, 1939

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Motion for summary judgment by P. H. Harris against Amzi G. Barber. From a judgment striking the motion and dismissing it, movant appeals.

Reversed and remanded. [186 So. 161]

J. K. Brockman and Jos. E. Robinson, both of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellee.

THOMAS, Justice.

This case was submitted on motion to dismiss the appeal, and on the merits.

The motion, among other things, was to the effect that no security for costs of appeal was given in compliance with the statutes; that a money deposit only was made with the Clerk of the trial court as security for costs of appeal; that the security for costs of appeal was signed only by the appellant, without other or further sureties or security for costs; that no name or names of the surety or sureties are certified to this Court with the record; and that "The appellant gave no security for costs of his appeal as required by the Statutes of Alabama."

As to this phase of the motion the Clerk of the Circuit Court certified to this Court as follows: "I further certify that on the 16th day of July, 1938, the movant prayed for and obtained an appeal to the present term of the Supreme Court of Alabama; and that P. H. Harris is principal and $50.00 cash has been deposited with the Clerk for costs of appeal for all costs, all of which appears of record in this Court, and all of which I hereby certify to the Clerk of the Supreme Court."

Where the appeal bond or security for costs of appeal is signed only by the party taking the appeal, and no other security for costs is given and certified to this Court pursuant to statute, the appeal will be dismissed on due motion.

The provisions of § 6131 of the Code are mandatory as affecting appeals to this Court and the Court of Appeals. This section reads: "Security for costs; when required.--An appeal may be taken without giving bond to supersede the execution of the judgment or decree, by the appellant giving security for costs of such appeal, to be approved by the clerk, register, or judge of probate; the names of the surety or sureties to be certified with the record to the appellate court; and execution may issue against such sureties for the costs in such court and the costs of the transcript, if decided against the appellant." § 6131, Michie's Code, page 986; Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803.

The provisions of § 7250 of the Code have application only to the trial courts, and not to the appellate courts. First Nat. Bank of Birmingham v. Garrison, 235 Ala. 687, 180 So. 690; Majors et al. v. Killian et al., 230 Ala. 531, 162 So. 289; Ex parte Wright, 228 Ala. 96, 151 So. 865; Byrum Hardware Co. v. Jenkins Bldg. Supply Co., 226 Ala. 448, 147 So. 411; Colbert County v. Tennessee Valley Bank, supra; Western Union Telegraph Co. v. Howington, 198 Ala. 311, 73 So. 550; Griswold v. Thornton et al., 129 Ala. 454, 30 So. 717; King & Owen v. McCann, 25 Ala. 471.

It follows that the motion to dismiss the appeal on the grounds set out above will be granted conditionally; that appellant is given sixty (60) days in which to give bond as required by statute to maintain the appeal. Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803.

For convenience we indicate that the order made in Eva Williams v. Home Owners' Loan Corporation, Ala.Sup., 184 So. 910, was on due motion and reads as follows: "Come the parties by attorneys, and the motion to dismiss the appeal for want of security for costs being submitted on briefs and duly examined and understood by the Court, it is considered and ordered that said motion be granted, unless the appellant file in this Court security for [186 So. 162] costs approved by the Clerk of the Circuit Court of Mobile County, within sixty (60) days from this date."

The questions for decision on the merits will not now be considered, pending the time given for giving bond to maintain the appeal.

Motion of appellee granted conditionally.

On the Merits

The security...