McPherson v. Stallworth
| Decision Date | 20 January 1955 |
| Docket Number | 1 Div. 611 |
| Citation | 78 So.2d 924,262 Ala. 367 |
| Parties | Lawrence McPHERSON v. John Morris STALLWORTH. |
| Court | Alabama Supreme Court |
Windell C. Owens, Monroeville, for appellant.
John M. Coxwell, R. L. Jones, Monroeville, and B. E. Jones, Evergreen, for appellee.
This is an appeal from a judgment in an action of ejectment and from a ruling on the motion for a new trial.
The appeal must be dismissed, for there is no organization of court appearing in the record as required by Supreme Court Rules, rule 26, Code 1940, Tit. 7 Appendix. See Garrad v. State ex rel. Waid, 260 Ala. 486, 71 So.2d 59; Pensacola, A. & W. R. Co. v. Big Sandy Iron Co., 147 Ala. 274, 41 So. 418.
Appeal dismissed.
On Application for Rehearing
On application for rehearing, we are urged to change our decision and reinstate the appeal, one reason being that the case was submitted on the merits with the appellee making no objection to the transcript. Such a defect cannot be waived. Unless there is an organization of the court shown, the jurisdiction of this court is never invoked. It may be true that no 'formal' organization is absolutely required, but it must be affirmatively shown that the proceedings appealed from were had in a court organized according to law. This should not be left to inference. The court in Bell v. Fulgham, 202 Ala. 217, 80 So. 39, 40, stated:
The court's statement about the certificate of appeal probably had reference also to the Probate Judge's certification of the record. From examining the original record in that case, we are unable to ascertain exactly what was embraced in the term 'other parts of the transcript,' unless it was an introductory statement preceding the bill of exceptions. We have no such statement in this case, though the clerk's certificate and the certificate of appeal conform generally to the ones in the Bell case. But there was a certificate of appeal in the case of Garrard v. State ex rel. Waid, 260 Ala. 486, 71 So.2d 59, which imparted the same information as the ones in the Bell case and the...
To continue reading
Request your trial
-
Tidwell v. State
...v. N. N. & T. J. Powell, 199 Ala. 275, 74 So. 364, and Bell v. Fulgham, 202 Ala. 217, 80 So. 39. Our Supreme Court, in McPherson v. Stallworth, 262 Ala. 367, 78 So.2d 924, has held this requirement to be jurisdictional and therein has virtually overruled Bell v. Fulgham, It should be noted ......
- IBI Grp., Mich., LLC v. Outokumpu Stainless USA, LLC
-
Hambrick v. Hambrick
...265 Ala. 48, 89 So.2d 530; West v. Camp, 264 Ala. 644, 89 So.2d 170; Reynolds v. Henson, 264 Ala. 435, 87 So.2d 856; McPherson v. Stallworth, 262 Ala. 367, 368, 78 So.2d 924; Garrard v. State ex rel. Waid, 260 Ala. 486, 487, 71 So.2d 59; Pensacola, A. & W. R. Co. v. Big Sandy Iron Co., 147 ......
-
Bunn v. State
...Court Rule 24. The lack of such a declaration is jurisdictional and appellate courts take notice thereof ex mero motu. McPherson v. Stallworth, 262 Ala. 367, 78 So.2d 924; West v. Camp, 264 Ala. 644, 89 So.2d 170; Barnes v. Salter, 270 Ala. 110, 116 So.2d 748; Sparrow v. Evans, 275 Ala. 89,......