LeFlore v. State ex rel. Moore

Decision Date06 April 1972
Docket Number1 Div. 714
Citation288 Ala. 310,260 So.2d 581
PartiesWalker Beck LeFLORE v. STATE of Alabama ex rel. Cassie Belle MOORE.
CourtAlabama Supreme Court

J. D. Quinlivan, Jr., Mobile, for appellant.

Charles R. Butler, Jr., Dist. Atty., Reynolds & Lauten, Mobile, for appellee.

HARWOOD, Justice.

Proceedings were instituted in August 1969 in the Juvenile Court of Mobile County to establish the paternity of the twin daughters of Cassie Belle Moore. The suit was brought by the State of Alabama on the relation of the mother. The defendant and reputed father was Dr. Walker Beck LeFlore.

After considerable legal maneuverings, continuances, and partial hearings, the proceedings were completed in a hearing on 30 June 1970.

On that day the following order, judgment and decree was rendered and placed on the records of the Juvenile Court:

'6/30 Com. and Def. appearing with their attorney and additional testimony being received, at the conclusion of which both Comp. and Def. rested, from the evidence presented the Court finds the Def. to be the father of the children Colette and Claudia Moore. Def. gives notice of appeal and the Court sets appeal bond at $100 and declines to fix a specific amount of support pending the hearing of the appeal at which time, if affirmed, the Court will fix support payments unless this is done by the Appeal Court.'

The entire court file of the proceedings in the Juvenile Court was thereafter delivered to the Circuit Court of Mobile County, in Equity, with a certificate dated 7 July 1970. Despite the date of the certificate it was conceded by defendant's counsel that this file was not delivered to the Circuit Court until 16 July 1970. This certificate was executed by Norman J. Gale, Supervisor, Chief Investigator Non-Support Division, Juvenile Court, Mobile, Alabama. Among other things the certificate sets forth that at the hearing on 30 June 1970, the Juvenile Court had found and adjudicated LeFlore to be the father of Cassie Belle Moore's two illegitimate children, and that the defendant, through his attorney immediately gave notice of appeal, and that the court 'at the rendition of its decision declined to fix a specific amount of support pending appeal.'

Contained in what is designated as 'Original Court File of Juvenile Court,' which was the file delivered to the Circuit Court on 16 July 1970, are two undated notices of appeal. One is entitled 'Notice of Appeal from the Juvenile Court,' and is headed 'In the Circuit Court of Mobile County, Alabama,' and gives notice that the defendant 'appeals to this honorable Court from the Judgment of the Juvenile Court on June 30, 1970, and all prior adverse rulings of said court.' The second Notice of Appeal headed 'In the Juvenile Court of Mobile County, Alabama,' recites that the defendant 'gives written notice of appeal to the Circuit Court of Mobile County from the Decision of this court on June 30, 1970. The defendant also appeals all prior adverse rulings of this Court.' (Emphasis ours.)

Each of the above notices demands a jury trial in the Circuit Court.

Neither of these appeal notices is marked 'filed.'

There also appears in the Juvenile Court file an Appeal Bond which contains the following recital:

'We, Walker Beck LeFlore principal, and Mobile Bonding Company and its agents as sureties acknowledge ourselves indebted to Mobile County, Alabama, in the sum of one-hundred DOLLARS for the payment of which, well and truly to be made, we bind ourselves, our administrators and executors. But the condition of the above obligation is such, That whereas the Juvenile Court of said County did on the 30th day of June, 1970, make and enter a final order of judgment, whereby the above bounden Walker Beck LeFlore was adjudicated the father of two (Twins) illegitimate children * * *' (Emphasis ours.)

This bond is dated 6 July 1970, and was approved by the Judge of the Juvenile Court on 7 July 1970.

On 21 August 1970, the state, on the relation of Cassie Belle Moore, complainant, filed a motion in the Circuit Court, in Equity, to dismiss the appeal taken to the court from the judgment of the Juvenile Court on grounds that the appeal was not timely filed.

An extensive hearing on the motion was held by the Hon. Ferrill D. McRae, Judge of the Circuit Court of Mobile County, in Equity, and thereafter Judge McRae on 27 January 1971, entered an order dismissing the appeal and remanding the cause to the Juvenile Court of Mobile County for enforcement of its order or orders.

At the hearing on the motion to dismiss, it was the contention of the counsel for the defendant LeFlore that the appeal had been filed on 2 July 1970, well within the ten day period under the provisions of Section 6, Act No. 295, approved 15 September 1961. (See Acts of Alabama, Special Session, 1961, p. 2353.) This Act now appears in the pocket part of 1958 Recomp. Code as Chapter 2A, Title 27, Sections 12(1)--12(9). Section 6 of the Act appears as Section 12(6), Title 27, and for convenience of the bar, the code sections will hereinafter be used as reference.

Section 12(6), Title 27, Code of Alabama 1940 (pocket part), pertaining to appeals to the Circuit Court from any final judgment of the court in which the paternity proceedings originated, provides that such appeal must be taken 'within ten days After rendition thereof by filing written notice of such appeal within said prescribed period With the clerk of the circuit court to which said appeal is taken and in the court rendering the judgment.' (Emphasis ours.)

In support of his contention that the appeal from the judgment of the Juvenile Court was timely filed, counsel for appellant introduced two affidavits. One affidavit was executed by his secretary of seven years. She set forth that her employer had on 2 July 1970, dictated two notices of appeal in the present case, one a notice of appeal to be filed in the Juvenile Court, and the second to be filed in the Circuit Court of Mobile County, and that a jury demand was made in each notice.

After typing the notices she asked the receptionist in the office to take the notices to the courthouse and told her to file one of the notices with the Juvenile Court, and one with the Circuit Court. When the receptionist returned she stated she had filed the notices in the appropriate places.

The affidavit of the receptionist sets forth that on 2 July 1970, upon instructions, 'I filed in the appropriate place in the Mobile County Courthouse, Notice of Appeals in the case of: Cassie Belle Moore v. Walker B. LeFlore, Jr.'

As before stated, neither of the notices of appeal are dated, and neither is marked filed. Each apparently was in the Juvenile Court file which was not received by the Circuit Court until 16 July 1970, more than ten days after the rendition of the judgment in the Juvenile Court.

An appeal is not a matter of vested right, but by the grace of statute, and must be perfected pursuant to the time and manner prescribed in the controlling statute, and if the requirements of such statute are not met, the appeal must be dismissed. Liverpool & London & Globe Ins. Co. v. Lowe,208 Ala. 12, 93 So. 765; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844.

We hold that on the facts and circumstances presented at the hearing on the motion to dismiss the appeal in the Circuit Court, we are in no position to say the Chancellor was not justified in the conclusions reached as evidenced by his decree as to this aspect of the evidence.

In brief and argument On appeal counsel for appellant contends that final judgment was not entered by the Juvenile Court until 14 July 1970, and therefore the appeal was in time even if the Juvenile Court file was not received in the Circuit Court until 16 July 1970. This contention was not made in the hearing...

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  • Honea v. Raymond James Fin. Servs., Inc.
    • United States
    • Alabama Supreme Court
    • 30 juin 2017
    ...pursuant to the time and manner prescribed in the controlling statute" and thus must be dismissed. LeFlore v. State ex rel. Moore, 288 Ala. 310, 313, 260 So.2d 581, 583 (1972).The fundamental problem with RJFS's argument—and for that matter with the overall posture of this case at the prese......
  • St. John v. State, 7 Div. 329
    • United States
    • Alabama Court of Criminal Appeals
    • 2 mai 1978
    ...controlling statute, and if the requirements of such statute are not met, the appeal must be dismissed. . . . ' LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581 (1972), cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d "For numerous citations to the same effect, see 2 Alabama......
  • Cantrell v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 20 décembre 1977
    ...statute, and if the requirements of such statute are not met, the appeal must be dismissed. . . ." LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581, 583 (1972) cert. denied 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d For numerous citations to the same effect, see 2 Alabama Digest, Ap......
  • Moore v. LeFlore, 1 Div. 713
    • United States
    • Alabama Supreme Court
    • 6 avril 1972
    ...Writ of mandamus granted. HEFLIN, C.J., and LAWSON, MERRILL and HARWOOD, JJ., concur. 1 In LeFlore v. State ex rel. Cassie Belle Moore, 1 Div. 714 (MS), 288 Ala. 310, 260 So.2d 581 (decided April 6, 1972), this Court has held that the appeal was not taken in accordance with the provisions o......
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