Hildebrand v. First Nat. Bank, 6 Div. 345.

• Citation: 221 Ala. 216,128 So. 219
• Decision Date: 10 April 1930
• Docket Number: 6 Div. 345.
• Parties: HILDEBRAND v. FIRST NAT. BANK OF FAIRFIELD.
• Court: Supreme Court of Alabama

128 So. 219

221 Ala. 216

HILDEBRAND v. FIRST NAT. BANK OF FAIRFIELD.

6 Div. 345.

Supreme Court of Alabama

April 10, 1930

Rehearing Denied May 15, 1930.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action in detinue by Isla Hildebrand against the First National Bank of Fairfield. Judgment for defendant, and plaintiff appeals.

Appeal dismissed.

G. P Benton, of Fairfield, for appellant.

Lange Simpson & Brantly and W. P. Rutledge, all of Birmingham, and Huey, Welch & Stone, of Bessemer, for appellee.

FOSTER J.

Appellant sued appellee in the circuit court for the recovery of personal property. A judgment was rendered on verdict for defendant, and appellant was taxed with the costs of the cause. She, a married woman, thereupon has undertaken to appeal upon executing an affidavit as provided in section 6138, without security for costs.

Appellee has moved this court to dismiss the appeal because the judgment is not such as by that statute she may appeal without giving security for costs.

Since this statute has been enacted in its present form, the purpose and effect of the last amendment October, 1915 (Acts 1915, p. 715), have been considered by this court in several cases, to some of which we will refer. Particularly is that true with respect to the words then added, "or for the payment of money." In construing the meaning of those words so added, it was pointed out in Ex parte Brown, 213 Ala. 7, 105 So. 170, that this phraseology is the same as that in sections 6132 and 6133, pertaining to the conditions under which a supersedeas may be effected on an appeal, and that they were "evidently intended to mean the same thing in each of the statutes which are closely associated and relate to the same subject." With that idea in mind we call attention to the cases in which this court has distinctly held that a judgment for costs is not one "for the payment of money" as used in sections 6132 and 6133. Ex parte Cudd, 195 Ala. 80, 83, 70 So. 721; Caldwell v. U.S. Fid. & Guar. Co., 205 Ala. 463 466, 88 So. 574; Kinney v. White, 215 Ala. 247, 250 110 So. 394.

It has been held that, where the judgment in a suit for the recovery of land went against a married woman, she was not entitled to the right of appeal under section 6138 without security for costs, though it is doubtless true that there was a judgment for costs against her. It does not appear to have been claimed that the judgment for costs was one for money under this statute, and that idea was not treated, though the denial of the right of appeal involved this question. Scott v. Shepherd, 215 Ala. 671, 112 So. 137.

In the case of Lea v. Phillips, 216 Ala. 35, 112 So. 323, a married woman was denied this right of appeal without security for costs in a case in equity where she had lost in a suit filed by her to set aside and annul a mortgage. There was doubtless a decree for costs against her, though no mention is made of it. There is a like situation in Cobb v. Reed Phosphate Co. (Ala. Sup.) 124 So. 94.

In the case of Peters v. Schuessler, 208 Ala. 627, 95 So. 26, the report of the case and the opinion refer to the fact that costs were decreed against the married woman in dismissing her petition. The appeal by her, under section 6138, without security for costs was dismissed.

Our conclusion is that a judgment merely for costs against a married woman is not a judgment for the payment of money within the meaning of section 6138, and therefore that the motion to dismiss this appeal should be, and is, sustained.

Appeal dismissed.

On Rehearing.

Appellant seeks a rehearing that she may now be permitted to give security for costs of appeal, and she cites in support of this claim Coleman v. Smith, 52 Ala. 259; Cahalan v. Monroe, 65 Ala. 254; Guy v. Lee, 80 Ala. 346. We note in those cases that this court, in holding that a married woman could not appeal without giving security for the costs, made an order allowing her time in which to do so. When those cases were decided, the time for perfecting an appeal was controlled by the Rev. Code of 1867 or Code 1876 , sections 3508, 3949, respectively. They allowed an appeal from a final judgment within two years. It was changed to one year in the Code of 1886 (section 3619), and it was the same in the Code of 1896 (section 436), but was changed to six months in the Code of 1907 (section 2868), and now so remains (...