Johnson v. State, 1 Div. 740
| Decision Date | 06 March 1958 |
| Docket Number | 1 Div. 740 |
| Parties | Haskel JOHNSON v. STATE. |
| Court | Alabama Supreme Court |
Judicial Building
Montgomery, Alabama
Dear Sirs:
The Court of Appeals under the provisions of § 88, Title 13, Code of 1940, has certified for our answer the following:
'Haskel Johnson, on November 2, 1956, convicted in the Circuit Court of Mobile County, Alabama, for the offense of receiving stolen property. From the judgment of conviction he appealed to this court.
'There was no motion for a new trial.
'On November 5, 1956, defendant gave notice of appeal. The transcript of the evidence was filed with the circuit clerk on January 7, 1957. No request for extension of time was made of the trial judge before the filing of the transcript. Under the statute providing for the computation of time the last day for the filing of the transcript was Friday, January 4, 1957. Title 1, Section 12, Code 1940.
'The record of the proceedings in the trial court was filed in this court on January 31, 1957.
'On February 6, 1957, the Attorney General filed motion to strike the transcript of the evidence on the ground it was filed with the circuit clerk more than sixty days after the date of the taking of the appeal.
'On February 21, 1957, appellant filed answer to the State's motion to strike, setting up that the Mobile Court House was closed on Saturday, January 5, 1957, and for this reason the transcript of the evidence could not be filed before January 7, 1957.
'The cause was submitted in this court on the motion to strike and on the merits, on March 28, 1957.
'On April 2, 1957, appellant filed in this court an order signed by the trial judge on March 29, 1957, extending the time for filing the transcript 'to include the 7th day of January, 1957.' The judge cited as authority for making such order the case of Joseph Mitchell v. William G. Austin , 94 So.2d 391.
'In Watkins v. Kelley, 262 Ala. 524, 80 So.2d 247, the court held that Title 7, Section 827(1) et seq., Code 1940, Pocket Part, * * *
'Section 827(1), supra, provides that the court reporter shall file the transcript of the evidence with the clerk within sixty days from the date on which the appeal was taken.
'Section 827(4), supra, also provides that the court reporter's certified transcript shall be filed with the clerk within sixty days from the taking of the appeal, provided that the period may be extended by the trial court for cause.
'Section 827(1a), supra, provides the period of time within which the reporter must file the transcript may be extended by the trial court.
'The Judges of the Court of Appeals being unable to reach an unanimous conclusion on the merits of the motion, under authority of Title 13, Section 88, Code 1940, we hereby certify the following questions:
'1. Does the trial judge have power to make an order after the expiration of the sixty day period provided by Title 7, Section 827(1), et seq., Code, supra, extending the time for filing the transcript?
'2. Does the trial judge have power to make an order extending the time for filing the transcript of the evidence after the record of the proceedings have been filed in this court and the cause has been submitted?
'Dated this the 17 day of October, 1957.
'Robert B. Harwood Presiding Judge
Annie Lola Price Judge
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:
* * *'
* * *' (Emphasis supplied.)
(Emphasis supplied.)
'(5). * * * any court reporter failing to transcribe and file testimony, pursuant to the terms of this law, shall be subject to discipline on the part of the court as and for a contempt of court.' (Emphasis supplied.)
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 the transcript 'may be extended by the trial court for cause.' Nowhere do we find a provision that the extension must be granted before the end 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...
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Leonard v. State, 6 Div. 169
...for good cause shown, extended the time for the court reporter to file the transcript of evidence to April 20, 1966. Johnson v. State, 269 Ala. 1, 111 So.2d 610. It was filed on this latter day with the circuit clerk. The entire record was filed here May 6, 1966, which is sixteen days past ......
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