Holman v. Baker, 4 Div. 155

Citation277 Ala. 310,169 So.2d 429
Decision Date03 September 1964
Docket Number4 Div. 155
PartiesNorman W. HOLMAN v. Eddie C. BAKER, Pro Ami.
CourtSupreme Court of Alabama

Wm. B. Matthews and Brown & Steagall, Ozark, for appellant.

Chas. L. Woods, Stokes & Woods, Ozark, and Albert W. Copeland, Euel A. Screws, Jr., Godbold, Hobbs & Copeland, Montgomery, for appellee.

PER CURIAM.

Defendant in the trial court here appeals from a judgment of the Circuit Court of Dale County granting plaintiff's motion to vacate and set aside the verdict of the jury in a personal injury suit, and also to vacate and set aside the judgment rendered and entered in the proceeding.

On January 18, 1963, prior to the submission here of this cause on March 29, 1963, appellee filed his motion to dismiss this appeal, assigning grounds as follows:

1. It affirmatively appears this appeal is on the record proper and the transcript of the record was not filed within the time provided by law.

2. It affirmatively appears that the transcript was not filed in this cause until January 7, 1963, and that within sixty days from the date the appeal was taken, the trial court entered an order extending the time for filing the transcript of the record 'to and including January 6, 1963.'

On the Motion to Dismiss

It appears from the transcript here on file that appellee's motion to vacate the verdict and judgment in favor of defendant (appellant here) was seasonably filed with the circuit clerk on June 15, 1962, and presented to the trial judge the following day. The trial judge, on such presentation, entered a written order continuing the hearing on the motion to June 29, 1962. On June 25, 1962, and again on June 29, 1962, by like order, he continued the motion to July 9, 1962. No further written order was made concerning the motion until July 28, 1962, when the trial judge entered an order in writing as follows:

'The motion of the Plaintiff in the above styled cause to set aside the verdict and judgment and to grant a new trial, having been heard by the Court on the 9th day of July, 1962, and taken under consideration for decree [sic]; and the Court being of the opinion that the motion should be continued for further consideration by the Court, it is therefore,

'CONSIDERED, ORDERED AND ADJUDGED by the Court that the motion for a new trial be and the same is hereby continued for further consideration by the Court until the 28th day of September, 1962.

'Ordered this 28th day of July, 1962.'

On September 12, 1962, the trial court entered a judgment granting the motion and vacating the verdict of the jury and the judgment thereon.

It further appears from the record that on October 9, 1962, defendant gave notice of appeal from the judgment of September 12, 1962, granting the motion, and on the same date filed security for costs of appeal.

On December 7, 1962, the circuit clerk filed with the trial court his petition stating that due to pressure of work in his office in connection with the trial of cases, preparation of court calendars, and other duties necessary for an ensuing session of court, he could not complete the appeal transcript by December 9, 1962, and requested an extension of time.

The trial judge on December 7, 1962, acting on said petition, extended the time for filing the transcript to and including January 6, 1963, which this court judicially knows was on Sunday. The transcript was filed with the clerk of this court on Monday, January 7, 1963.

One of the contentions of appellee is that the trial judge had no authority to extend the time for the reason that the appeal here is on the record proper, which does not contain any portion of the trial proceedings. He says:

'* * * The initial question is, therefore, whether under Rule 37 [Supreme Court Rule 37, Revised Rules effective June 1, 1955, and amended February 17, 1956] and Title 7, Sec. 770, the trial court has any power to extend the 60 day period fixed by the Rule as the time within which the record is to be filed.

'We think it is obvious that the scheme of Rule 37 envisions an extension of time only where the 'record' is an entire record. The term 'transcript of record' must have reference to a complete transcript of the proceedings below. There is no rational basis for allowing more than 60 days to prepare the record proper.'

Appellee cites the cases of Duke v. State, 264 Ala. 624, 89 So.2d 102, and Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891, and supporting his contention above noted.

We have examined both cases. In the Duke case, an extension of time by the trial judge was not involved. The author of the opinion specifically stated that no extensions of time for filing the transcript of record were requested in the court below.

In the Calvert case, there was an appeal from an adverse judgment of the Circuit Court of Mobile County to recover past-due installments of alimony awarded by decree of the Superior Court of Fulton County, Georgia. There this court observed:

'We here observe that we find nothing in the record to indicate that any request was made for extension of time for filing the transcript of the record. Nor do we find anything indicating that an attempt was made to procure a transcript of the evidence in the trial court as provided by those acts codified as §§ 827(1) to 827(6), Tit. 7, Code 1940, Pocket Part.' (265 Ala. 530, 92 So.2d 892)

We quote the pertinent part of Rule 37, supra, as follows:

'In all cases, either civil or criminal, the transcript shall be filed with the clerk of this court within sixty days after the signing or establishing of the bill of exceptions or the expiration of the time for establishing the same; except in equity cases the transcript shall be filed within sixty days of the taking of the appeal. Where bills of exceptions have been abolished, the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below. The trial judge may extend the time for filing transcript of the record in this court for good cause shown for not to exceed thirty days * * *.' (Emphasis supplied.)

We think the trial court had authority under this rule, for proper cause as here shown, to extend the time for filing the transcript of the record proper, The legislature probably envisioned sickness on the part of the clerk or other cause which might create a necessity for an extension. We do not think the authority of the trial judge to extend is circumscribed by a necessity for all the trial proceedings, including a transcript of the evidence, to be incorporated in the transcript or an attempt to procure the same.

Nor do we think there is any merit in appellee's motion to strike the transcript and dismiss the appeal because the transcript was not filed until January 7, 1963--one day after the time fixed by the trial court for filing. As we have already observed, January 6, 1963, was on Sunday. Supreme Court Rule 46, Revised Rules, effective June 1, 1955, and amended February 17, 1956, gave an extra day (the last day being on Sunday) to file the transcript on this appeal.

On the Merits

Appellant complains by assignment of error that the trial court lost jurisdiction of the motion and discontinuance ensued because on July 9, 1962, the date the motion was heard and submitted, the trial court failed 'to make and enter some ruling on the motion for a new trial or some order continuing the motion for a new trial to a future date.'

The trial court entered an order in writing on July 28, 1962, a copy of which appears, supra.

The undisputed recitation by the trial court, supra, that the motion was heard on the appointed date, July 9, 1962, and taken under consideration, we take to be true. When the motion was heard and submitted as stated by the trial court, the issue presented was in the breast of the court until September 12, 1962, when a judgment on the motion was duly entered.

Under such circumstances as the record here presents a written order of submission of the motion for consideration or advisement on the part of the court at the time of submission, although advisable for clarity of the record, was not necessary to preserve the integrity or life of the motion. Nor was an order of continuance necessary. The demands of law were met when the trial judge took submission of the motion, and later, prior to judgment, let the record show such submission at the time fixed by prior order of continuance.

This appeal presents for judicial ascertainment the intention of the legislature in enacting §§ 53 and 54, Title 30, Code of Alabama, 1940. These sections are as follows:

' § 53. Peremptory challenges.--Each party has the right to challenge four of the jury peremptorily in civil causes.

' § 54. Struck jury.--In all civil actions triable by jury, either party may demand a struck jury, and must thereupon be furnished by the clerk with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; provided, that in all judicial circuits having not more than two judges, the court shall require to be made two lists of all the jurors in attendance upon the court, who are competent to try the case, and not engaged in the trial of some other case, which list shall in no event contain less than twenty-four jurors, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until only twelve remain on the list, the party demanding the jury commencing; and the jury thus obtained must not be challenged for any cause, except bias or interest as to the particular case.'

It appears from the transcript of the proceedings in the trial court that the circuit clerk presented the parties with a list bearing the names of thirty-one qualified jurors, from which,...

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