Jacobs v. Goodwater Graphite Co.
Citation | 205 Ala. 112,87 So. 363 |
Decision Date | 16 December 1920 |
Docket Number | 5 Div. 754 |
Parties | JACOBS v. GOODWATER GRAPHITE CO. |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Coosa County; E.J. Garrison, Judge.
Suit by Moses Jacobs, Sr., against the Goodwater Graphite Company to enforce a vendor's lien. Decree for respondent, and complainant appeals. Motion to dismiss overruled, and decree affirmed.
J Sanford Mullins, of Alexander City, for appellant.
John A Darden, of Goodwater, for appellee.
The case was submitted on motion and on merits.
The motion was to dismiss the appeal for the reason that appellant did not file the transcript in the cause with the clerk of this court within 60 days after its completion and certification. The final decree was rendered on March 4 1920, from which the appeal was taken on March 19th, security for costs for perfection of the appeal approved March 20th certification of the register to the transcript was on April 16th, and the transcript was filed with the clerk of this court on November 16th thereafter. Gen.Acts 1919, pp. 84-86. Acceptance of service of appeal and waiver of further notice was of date of April 6, 1920; the respective calls of the fifth division were for April 12, 1920, and November 15, 1920.
The several provisions of the act in question have not been construed by this court. Butler Cotton Oil Co. v. Brooks, 85 So. 778; Wells Amusement Co. v. Eros, 85 So. 692. The Act of February 15, 1919, Gen.Acts, p. 84, to amend the Act of September 22, 1915 (Gen.Acts 1915, p. 711), "to further prescribe and regulate the right and manner of taking appeals in civil and criminal cases and their submission in the Supreme Court and Court of Appeals," provides:
By section 6 it is provided that the clerk of the Supreme Court and the clerk of the Court of Appeals shall enter all cases wherein appeal is taken, on a docket in the order in which the transcripts or certificates of appeal are presented.
The record in the office of the clerk of the Supreme Court discloses that the certificate of appeal was filed on April 6th and there was a continuance of the cause on April 13th, on the call of the Fifth division, from where the appeal came. There was no formal order extending the time for filing the transcript, unless the order of continuance so operated. The appeal was taken when good and sufficient surety for costs was lodged with the register (Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241), and the cause was docketed on certificate in this court within the time prescribed by statute. Section 2868, Code (as amended, Gen.Laws 1915, p. 711); Gen.Laws 1919, p. 84; section 2870, Code.
The delay in filing the transcript was not prejudicial. Collier v. Coggins, 103 Ala. 281, 15 So. 578; Cudd v. Reynolds, 186 Ala. 207, 61 So. 41; National Union v. Sherry, 180 Ala. 627, 61 So. 944; Southern Ry. Co. v. Abraham Bros., 161 Ala. 317, 49 So. 801. Had the case not been docketed in this court until the subsequent term, there may have been merit in movant's motion. National Union v. Sherry, supra. The provision in the act of 1919 (Gen.Acts, p. 85, § 4) requiring appellant to file the transcript within 60 days "after the signing or establishing of the bill of exceptions or the expiration of the time for establishing the same" is not applicable to an appeal in an equity case. The motion to...
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... ... lodged with the proper officer, if it is thereafter approved ... by him. Jacobs v. Goodwater Graphite Co., 205 Ala ... 112, 87 So. 363. After an appeal is taken, the court ... ...
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