Southern Ry. Co. v. Abraham Bros.
| Citation | 161 Ala. 317,49 So. 801 |
| Parties | SOUTHERN RY. CO. v. ABRAHAM BROS. |
| Decision Date | 20 May 1909 |
| Court | Supreme Court of Alabama |
Appeal from Circuit Court, Autauga County; W. W. Pearson, Judge.
Action between the Southern Railway Company and Abraham Bros. From a judgment for Abraham Bros., the Southern Railway Company appeals. Appeal dismissed.
Hugh Nelson, for appellant.
Wilson & Martin, for appellees.
This cause is submitted on motion to dismiss the appeal, motion to strike the bill of exceptions, and on the merits. We treat only the motion to dismiss the appeal.
From the certificate of the clerk it appears that the appeal was taken on April 2, 1908. The call of the docket of the Third division, as fixed by statute, was had on May 11, 1908. The appeal, having been taken during the November term, 1907, was returnable the first Monday beyond 20 days after April 2, 1908. Code 1896, § 437; Code 1907, § 2870. The cause was not docketed in this court, nor the transcript filed here, until December 14, 1908, the beginning of the November term, 1908. The submission, on the part of the appellant, of the motion to dismiss the appeal, does not include any effort or showing to justify or excuse the delay in filing the transcript, but relies solely upon the law, and that as declared in Martin Mach. Works v. Miller, 132 Ala. 629, 32 So. 305. That decision dealt with an appeal effected in vacation, not during a term of this court, and Martin Mach. Works v. Miller is grounded, in authority, upon Street v. Street, 113 Ala. 333, 21 So. 138, where a like factor was present, and in deciding the question of dismissal vel non the court distinguished Sears v. Kirksey, 81 Ala. 98, 2 So. 90, and other decisions of that school, wherein the delay extended across vacation and into a succeeding term. The motion must be granted. The recent announcement and ruling made in Porter v. Martin, 139 Ala. 318, 35 So. 1006, is conclusive on the question. The status there involved was practically identical with that here; and, after due consideration, we are unwilling to overrule Porter v. Martin. It is based upon many previous decisions of this court, and their unsoundness has not been made to appear to us.
The appeal is dismissed.
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