Johnson v. State, 1 Div. 740
Decision Date | 19 August 1958 |
Docket Number | 1 Div. 740 |
Citation | 111 So.2d 614,40 Ala.App. 39 |
Parties | Haskel JOHNSON v. STATE. |
Court | Alabama Court of Appeals |
Harry Seale, Mobile, for appellant.
John Patterson, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
Under the provisions of Section 88, Title 13, Code 1940, certain questions, relative to the authority of the trial judge to extend the time for filing the transcript of the evidence, were certified to the Supreme Court. The reply of the Supreme Court, which sets out the questions, is as follows:
'We answer the questions set out in your inquiry of October 17, 1957, in the order in which they are presented.
'Question 1.
'Our opinion is that the trial court does have the power to make the order in question after the expiration of sixty days from the date on which the appeal was taken.
'We are not to be understood as holding that the trial court has unreasonable or unlimited power to make such an order extending the time for filing the transcript under all conceivably unreasonable circumstances or to the injury of the adverse party. What we do hold is that the trial court's power to grant an extension of time is not extinguished or cut off by the mere expiration of the sixty day period immediately following the date on which the appeal is taken. We think this construction conforms with reason as well as the language of the statute itself.
'The governing statute is Act No. 886, approved September 12, 1951, Acts 1951, p. 1527. This Act may be found in Pocket Parts, Code 1940, Title 7, § 827(1), et seq. The pertinent sections of Act No. 886 appear as § 827, subsections (1), (1a), (4), and (5).
'In pertinent parts, those subsections recite as follows:
'Act No. 886, supra, places no limitation on the length of the extension of time which may be granted by the trial court. In that situation, we can only conclude that the length of the extension is to be limited only by what is reasonable. In this case, the extension was for three calendar days. The practical effect was to grant one day's extension, for it was only on the third day that the filing could be made, since on the first two days of the extension the clerk's office was closed. Certainly an extension for one day is reasonable. One day is the shortest possible extension. If the trial court is to grant any extension at all, the length of the extension must be at least one day.
'The legislature, in said Act No. 886, in two separate provisions, which we have emphasized, has said that the sixty day period for filing that transcript 'may be extended by the trial court for cause.' Nowhere do we find a provision that the extension must be granted before the and of the sixty day period. If such was the intention of the legislature, the act does not express that intention.
'Indeed, it is not unreasonable to conclude that the legislature deliberately avoided attaching such a limitation to the power of extension which is given to the trial court. A situation could easily arise where the reporter might suddenly die or become ill on the sixtieth day and as a result fail to file the transcript within the sixty day period. It would not be reasonable in such a case to say that the trial court could never thereafter extend the time within reasonable limits, and the appellant was thereby forever barred from having his appeal considered on the merits. We do not attribute such an intention to the legislature.
'We construe the statute as conferring on the trial court the power to enter an order granting a reasonable extension, even after the expiration of the original sixty day period, provided the delay is not shown to be due to the fault of the appellant, or his attorney, and it is not shown that the appellee has been prejudiced by the delay.
'We do not attempt to say what is reasonable in every case. In the case with which we are here concerned, the delay appears to have been one day. It does not appear that appellant caused the delay, nor is it shown that appellee has been prejudiced. The order entered by the trial court in this case on March 29, 1957, sets out what appears to us to be good cause for granting the extension.
'The statute does not purport to inflict any penalty for failure to file the transcript 'pursuant to the terms of this law' on any person other than the court reporter, and here again, the penalty is to be imposed by the trial court. § 827(5), supra.
'The authority to extend the time for filing rests in the trial court, not in the appellate court. The statute makes no provision for the transfer of that authority. Watkins v. Kelley, 262 Ala. 524, 80 So.2d 247. For these reasons, we answer Question 1 in the affirmative.
'Question 2.
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