Southern Life & Health Ins. Co. v. Williams, 4 Div. 825

• Decision Date: 27 June 1935
• Docket Number: 4 Div. 825
• Parties: SOUTHERN LIFE & HEALTH INS. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

163 So. 321

230 Ala. 681

SOUTHERN LIFE & HEALTH INS. CO. v. WILLIAMS.

4 Div. 825

Supreme Court of Alabama

June 27, 1935

Rehearing Denied Oct. 10, 1935

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Action by Willie Mae Williams against the Southern Life & Health Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

Clayton Clayton & Clayton, of Clayton, for appellant.

Guy W Winn, of Clayton, for appellee.

BROWN Justice.

Motion is made by the appellee to dismiss the appeal and strike the case from the docket, and assigns two grounds: (1) That the clerk has not certified that an appeal was taken, and (2) that the record does not contain a citation of appeal showing service on the appellee or her attorney of record.

We find in the record a certificate of appeal made by the clerk on January 5, 1935, in due form, and that "notice of the said appeal was on the 7th day of November, 1934, served on G.W. Winn as attorney of record for said appellee." This certificate was filed with the clerk of the Court of Appeals on January 7, 1935.

There is also a certificate of the clerk of the circuit court under his official seal, that the transcript, filed in the office of the clerk of the Court of Appeals January 30, 1935, is a true and correct transcript of the proceedings of said circuit court, and that "the defendant gave notice of an appeal to the Court of Appeals of Alabama from the judgment rendered against it in the Circuit Court of Barbour County, and has filed with me a bond as security for the cost of said appeal, with Southern Life & Health Insurance Company as principal on said bond, and the Indemnity Insurance Company of North America as surety."

There is also in the record an original citation of appeal issued by the clerk on April 1, 1935, and served on the attorney for appellee by the sheriff of said county on April 1, 1935. The case was submitted in the Court of Appeals "on briefs on motion and on merits," May 7, 1935.

The motion to dismiss the appeal is not well taken, and is overruled. Code 1923, § 6101; Supreme Court Rules of Practice 30 and 43, Code 1923, vol. 4, pp. 889, 893; Couch v. Bryan et ux., 209 Ala. 13, 95 So. 377.

The case was tried on the second count of the complaint as amended, declaring on a judgment rendered by J.B. Dykes, as justice of the peace of Beat 7, Barbour county, on the 9th day of January, 1933, in favor of the plaintiff for the sum of $53.65, against the Life Insurance Company of Alabama. Said count, after stating the above facts, avers that "said judgment was rendered in a suit based upon an insurance policy issued on to-wit, May 12, 1930, upon the life of Howard Williams by the...