McCulley v. Stroud

• Decision Date: 17 December 1970
• Docket Number: 1 Div. 628
• Parties: James McCULLEY v. John STROUD d/b/a Bob's Dollar Store, et al.
• Court: Alabama Supreme Court

Page 28

243 So.2d 28

286 Ala. 515

James McCULLEY v. John STROUD d/b/a Bob's Dollar Store, et al.

1 Div. 628.

Supreme Court of Alabama.

Dec. 17, 1970.

John L. Lawler, M. A. Marsal and Howell, Johnston, Langford & Finkbohner, Mobile, for appellant.

Edward P. Turner, Jr., and Dennis Porter, Chatom, for appellee, Mildred Jordan.

Armbrecht, Jackson & DeMouy and Broox G. Holmes, Mobile, for appellee, John Stroud, d/b/a Bob's Dollar Store.

McCALL, Justice.

The plaintiff appeals from the trial court's judgment rendered against him.

The judgment granted the defendants' separate motions for a discontinuance of the cause on the ground that an amendment, filed to the complaint by the plaintiff, worked an entire change of party plaintiff. After consideration, the court ordered and adjudged that the cause be discontinued and dismissed. All costs of court were taxed against the plaintiff, for which execution was directed to issue. The case was submitted here on the foregoing action taken by the trial court, as well as on certain motions filed by the appellees in this court.

The appellee Stroud moves us to dismiss the appeal on the ground that the order appealed from is not such a final judgment as will support an appeal within the meaning of the statute, Tit. 7, § 754, Code of Alabama, 1940, which provides for appeals to the Supreme Court from final judgments. The judgment, entered by the trial court, discontinuing and dismissing the plaintiff's cause, taxing him with all the costs of court, and directing that execution issue against him, effectively put an end to the plaintiff's action. He could proceed no further with his case. This constituted not only an order of dismissal of the case, but also a final judgment against the plaintiff. In the case of Ex parte Hendree, 49 Ala. 360, this court held that when a cause is dismissed from the docket of a court, and a final judgment is rendered therein against one of the parties for the costs, then an appeal will lie from such judgment and mandamus is not an appropriate remedy. Davis v. McColloch, 191 Ala. 520, 522, 67 So. 701. See also Plunkett v. Dendy, 197 Ala. 262, 72 So. 525, wherein we likewise held that an appeal will lie from a trial court's order and judgment granting the defendant's motion for a discontinuance of the plaintiff's cause, taxing the plaintiff with the costs, and directing that execution issue. Appellee Stroud's motion to dismiss the appeal on the ground stated is therefore overruled.

Next, the appellee Stroud, moves the court to strike the transcript of the record and to dismiss the appeal, because the record fails to show that the circuit clerk approved the security for costs of appeal which was filed with him. In one manner, appeals may be shown by giving security for costs of the appeal to be approved by the clerk, Tit. 7, § 766(b), Code of Alabama, 1940.

In response to a petition filed by the appellant, this court granted a writ of special certiorari to perfect the record on appeal by requiring the circuit clerk to certify to this court the full or complete contents of the security for costs, filed with him in the cause. The purpose of the writ of special certiorari was to get into the record on appeal matter, which was proper to appear there, but which was not a part of the record that was filed in this court at the time when certified to by the clerk. Williams v. McConico, 25 Ala. 538.

Answering the writ, the circuit clerk certified that the written security for costs was approved by him on the same day that the bond was filed. There is no contradiction of his certified answer. Therefore, on authority of Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148, we hold that, on collateral attack and without more than presented here, we will give effect to the answer of the clerk as to what constitutes the record in the case. There is in the present case, as in Williams v. McConico, supra, no contest as to the facts which occurred with respect to the clerk's having approved the bond. Since the record, as perfected and certified to, shows that a valid bond was, in fact, tendered to the clerk and approved by him, when it was filed, jurisdiction of this court attached as of that date, Maya Corporation v. Smith, 239 Ala. 470, 196 So. 125. Appellee Stroud's motion, attacking the sufficiency of the appeal bond, is therefore overruled.

This is an action at law and under Tit. 7, § 769, Code of Alabama, 1940, and Supreme Court Rule 37, Revised Rules of Practice in the Supreme Court, as amended, Appendix to Tit. 7, Code of Alabama, 1940, the appellant is required to file the transcript of the record in the office of the Clerk of the Supreme Court within sixty days after the transcript of the evidence has been established in the trial court, but subject to an extension of time.

No objections have been filed to the transcript of the evidence in this case, and no extensions of time for filing the transcript of the record have been requested, either of the trial court, or here. The judgment appealed from in this case was entered on August 18, 1969. The appellant filed security for the costs of the appeal on January 19, 1970. This dates the appeal as having been taken on that date. General Mutual Insurance Co. v. Ginn, 283 Ala. 470, 218 So.2d 680; Ridgeway v. Lovelady, 268 Ala. 503, 108 So.2d 459; Parker v. Bedwell, 243 Ala. 221, 8 So.2d 893; Danley v. Danley, 263 Ala. 390, 82 So.2d 534; Lloyd's of London v. Fidelity Securities Corporation, 39 Ala.App. 596, 105 So.2d 728; Tit. 7, § 766(b), Code of Alabama, 1940. Meanwhile, at the appellant's request, the official court reporter had already prepared and filed the transcript of the evidence in the case with the circuit clerk, 'early,' on September 5, 1969. Subsequently, the court reporter certified on March 19, 1970, (the fifty-ninth day after the appeal had been taken on January 19, 1970) that she had refiled the transcript with the circuit clerk. The clerk marked the transcript 'Filed 19th day March 1970 W. E. Miller Clerk 2:45 P.M.' The transcript of the record was filed in the Supreme Court on May 13, 1970.

When no objections are filed to the transcript of the evidence, within the prescribed period of ten days after its filing with the clerk, it is conclusively presumed to be correct and becomes established as of the day when it was filed. Tit. 7, § 827(1a), Recompiled Code of Alabama, 1958; Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140; Wanninger v. Lange, 268 Ala. 402, 405, 108 So.2d 331; Hornbuckle v. State, 268 Ala. 347, 105 So.2d 864. Here, as already stated no objections were filed, so the transcript of the evidence became established when it became effectively filed with the clerk. The question is: When is the transcript of evidence to be treated as being effectively filed where it has been deposited in the clerk's office before the appeal is perfected?

If the transcript of the evidence was filed with the clerk of the circuit court and established more than sixty days before the transcript of the record was filed in this court, the appellees' motions are due to be granted, Wanninger v. Lange, supra; Colquett v. Williams, 264 Ala. 214, 86 So.2d 381; Relf v. State, 267 Ala. 3, 99 So.2d 216; West v. State, 39 Ala.App. 358, 101 So.2d 638, cert. den. 267 Ala. 700, 101 So.2d 640; Lane v. State, 38 Ala.App. 484, 87 So.2d 668; Clark v. State, 38 Ala.App. 480, 87 So.2d 669; Aaron v. State, 39 Ala.App. 84, 94 So.2d 415; Burgess v. Exchange Leasing Corporation, 45 Ala.App. 374, 231 So.2d 151; otherwise, they are to be denied.

In Bates v. Rentz, 262 Ala. 681, 81 So.2d 349, the judgment was dated October 14, 1954, and the appeal was taken on January 15, 1955. The court reporter filed the transcript of the evidence 'early' with his certificate that he had notified the attorneys of record of such filing on January 4, 1955. After the appeal was taken, there was no refiling of the transcript. Our examination of the record in the Bates case shows that it was filed in this court on February 9, 1955. Thus, the timeliness of the filing of the record was not involved there, because the transcript of the evidence, in any event, had been established by being filed with the clerk within sixty days before the record was filed here. The question in the Bates case was the validity of the 'early' filing of the transcript of the evidence with the circuit clerk. On this point the court said:

'* * * The mere fact that the court reporter filed the transcript in the clerk's office eleven days before the appeal was taken, will not vitiate the appeal. It is not the purpose of the statute or the rule to penalize promptness on the part of the reporter or the appellant. The motions are without merit.'

The court did not state the effective date of the filing of the transcript, but said that the filing was eleven days before the appeal was taken. We interpret this to mean that the filing occurred eleven days before it could have been effectively filed. No provision of law exists for a filing before an appeal is taken.

In Lloyd's of London v. Fidelity Securities Corporation, 39 Ala.App. 596, 105 So.2d 728, judgment was entered on February 8, 1957, and security for costs, which dated the appeal, was not filed with the circuit clerk until August 2, 1957. The transcript of evidence however, was filed by the court reporter (with notice to counsel thereof) on May 16, 1957, an 'early' filing. On August 2, 1957, the circuit clerk endorsed this transcript 'Refiled August 2nd 1957.' The transcript of record was filed in the Court of Appeals on October 1, 1957. This was on the sixtieth day after the appeal was taken. In this case the court said:

'The appeal being August 2, 1957, the 'filing' or depositing of the transcribed testimony at an earlier date was a matter neither required nor regulated by statute or court rule, and, accordingly, should not begin the running of the period to get the record to the appellate court...