State for Use of Russell County v. Fourth Nat. Bank of Columbus, Ga.

• Decision Date: 17 December 1959
• Docket Number: 4 Div. 980
• Citation: 117 So.2d 145,270 Ala. 135
• Parties: STATE of Alabama for Use of RUSSELL COUNTY, et al., v. FOURTH NATIONAL BANK OF COLUMBUS, GA., as Executor, et al.
• Court: Alabama Supreme Court

Page 145

117 So.2d 145

270 Ala. 135

STATE of Alabama for Use of RUSSELL COUNTY, et al., v. FOURTH NATIONAL BANK OF COLUMBUS, GA., as Executor, et al.

4 Div. 980.

Supreme Court of Alabama.

Dec. 17, 1959.

Jas. H. Caldwell, Circuit Sol., Phenix City, for appellants.

Bowen H. Brassell, Phenix City, for appellees other than Greene.

Hill, Hill, Whiting & Harris and John O. Harris, Montgomery, for appellee Greene.

LAWSON, Justice.

This suit was instituted by the Solicitor of the Twenty-sixty Judicial Circuit in the name of the State of Alabama for the use and benefit of Russell County and in the name of Russell County against the Fourth National Bank of Columbus, Georgia, as executor of the estate of J. B. Parkman, deceased; Oscar E. Cole; Austin A. Dudley; C. A. Davis; Robert C. Greene, doing business as Valley Construction Company; and the Maryland Casualty Company.

In essence the purpose of the suit is to recover for Russell County monies alleged to have been illegally expended, the illegality consisting of the failure to advertise for bids for road construction performed on behalf of Russell County.

J. B. Parkman and the respondents Oscar E. Cole and Austin A. Dudley were members of the County Commission for Russell County, and authorized the alleged illegal payments to the respondents Davis and Greene, road contractors. Maryland Casualty Company was the surety on the official bonds of Parkman, Cole and Dudley.

Demurrer of the respondents other than Robert C. Greene was sustained on September 18, 1958. The amended demurrer of the respondent Robert C. Greene was sustained on September 30, 1958. The complainants took an appeal to this court on October 3, 1958. The certificate of appeal was filed here on October 31, 1958.

Submission in this court, on March 26, 1959, was on the merits, on appellant's motion for extension of time within which to file the transcript of the record in this court, on appellee Greene's objections to appellants' motion for extension of time, and on the motion of the other appellees to strike the transcript of the record.

Section 769, Title 7, Code 1940, provides that in equity cases the appellant shall file the transcript (full record) in the office of the clerk of this court within sixty days from the date of the taking of the appeal.

Revised Rule 37 of this court, Code 1940, Tit. 7 Appendix, as amended, reads:

'In all cases, either civil or criminal, the transcript shall be filed with the clerk of this court within sixty days after the signing or establishing of the bill of exceptions or the expiration of the time for establishing the same; except in equity cases the transcript shall be filed within sixty days of taking of the appeal. Where bills of exceptions have been abolished, the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below. The trial judge may extend the time for filing transcript of the record in this court for good cause shown for not to exceed thirty days, and this extension may be made within the thirty additional days, provided that in no event shall such extension project the time for filing the transcript beyond ninety days. Thereafter the time for filing in this court may be extended only by this court for good cause shown upon petition in writing of which adversary counsel must have ten days' notice. The application to the trial judge and a ruling thereon is a prerequisite to making the application to this court, unless it be shown that the trial judge was unavailable or that the application to him for an extension was not made for a good and sufficient reason. A copy of any order of the trial judge extending the time for filing transcript shall be filed by appellant in this court within five days from the date of such order.' 263 Ala. XXI (Emphasis supplied.)

In regard to appeals submitted in this court prior to June 1, 1955, the effective date of the revised rules of this court, we construed § 769, Title 7, Code 1940, as not requiring the dismissal of an appeal from a decree in equity where the transcript was not filed here within sixty days from the date of the taking of the appeal if the transcript was on file and the cause ready for submission on the merits at the first call of the division from which the appeal came. McCoy v. Wynn, 215 Ala. 172, 110 So. 129; Hinson v. Cook, 241 Ala. 70, 1 So.2d 33; Collins v. Thompson, 259 Ala. 82, 65 So.2d 491; Franks v. City of Jasper, 259 Ala. 641, 68 So.2d 306. Submissions on brief as well as on oral argument were then taken at the calls of the several divisions and hence if the transcript was on file prior to the call of the division from which the appeal came, the failure to file the transcript within the sixty-day period did not work any delay.

But under our revised rules, in the absence of a request for oral argument, made in the manner provided, when briefs from all parties have been properly filed with the clerk of this court, the clerk must 'immediately submit the case in term time upon the transcript and such briefs.' Revised Rule 4; 261 Ala. XXI.

Hence, a failure to file the transcript within the sixty-day period under the revised rules could result in delay of the submission in this court. Therefore, the rule of the cases last cited above can have no application in determining whether the transcript has been timely filed within the meaning of Revised Rule 37, as amended. The mere fact that the transcript is on file in the office of the clerk of this court before the first call of the division from which the appeal comes will not operate to bar dismissal of the appeal where there has been a failure to file the transcript within the time prescribed in said Rule 37, as amended.

A transcript not filed in the office of the clerk of this court within the time prescribed in Revised Rule 37, as amended, will be stricken and the appeal dismissed where no extension of time for filing the transcript in this court has been obtained in the manner and within the time prescribed in that rule. Harbin v. O'Rear, 264 Ala. 190, 86 So.2d 279; Donahoo v. Kerns, 265 Ala. 24, 89 So.2d 270; Underwood v. Estes, 267 Ala. 406, 103 So.2d 18; Hornbuckle v. State, 268 Ala. 347, 105 So.2d 864; Wanninger v. Lange, 268 Ala. 402, 108 So.2d 331.

This being an equity case and the appeal having been taken on October 3, 1958, the transcript was due to be filed here not later than December 2, 1958. It was not filed by that time.

On December 2, 1958, the solicitor and one of the attorneys who had appeared on behalf of the respondents other than Robert C. Greene, joined in filing a motion requesting the 'court' to extend the time for filing the transcript in this court for a period of thirty days.

The attorney who had filed separate demurrer on behalf of the respondent Robert C. Greene did not join in the motion.

The circuit judge to whom the motion for extension of time was presented recused himself. He had filed demurrers on behalf of some of the respondents and was appointed circuit judge after the decrees sustaining the demurrers were entered.

Counsel for the parties not being able to agree on a special judge, the register appointed a special judge under the provisions of § 124, Title 13, Code 1940, to act on the motion for extension of time within which to file the transcript in this court.

On December 22, 1958, following a hearing on the petition to extend time for filing the transcript, the special judge entered two separate decrees, one of which appears to deny the petition in all respects. But when the two decrees are considered together, it is made to appear that the trial court in fact decreed that the time for filing the transcript be extended for a period of thirty days until, to wit, January 2, 1959, 'as to all matters of an appeal between the complainant and the respondents except Robert C. Greene * * *' As to the respondent Robert C. Greene, the petition for extension of time within which to file the transcript in this court was denied.

The transcript was filed on December 24, 1958. On the same day the appellants filed a motion requesting this court 'to grant to the appellants twenty-two days as additional time to and including the 24th day of December, 1958, (the date of filing of said record in this court) within which to file the transcript of the record with the Clerk of this Court, as to appellee, Robert C. Greene, doing business as Valley Construction Company; additional time as to the remaining five appellees have [sic] already been granted by the trial court.'

It was on January 2, 1959, that the appellee Robert C. Greene, through his counsel, filed in this court his 'objections to motion for an extension of time to file the transcript of the record.' And on the same day the appellees other than Robert C. Greene filed in this court their motion to strike the transcript theretofore filed in this court on December 24, 1958, on the ground that the transcript was not filed within the time required by Supreme Court Rule 37, as amended, and on the further ground that a copy of the transcript served upon movants does not contain a copy of the assignments of error.

The appellees other than Robert C. Greene having consented to and in fact having asked for the order of extension, cannot be heard in this court to say that the transcript was not filed within the time required by Supreme Court Rule 37, as amended, when it was filed within the extended period of thirty days as decreed by the special judge in regard to said appellees.

There is no requirement that the copy of the transcript served upon the appellee contain a copy of the assignments of error. Supreme Court Rule 1 provides that assignments of error shall be written or typed upon transcript paper and bound with the transcript and shall bear the certificate of appellant, or his counsel, that a copy of the same has been served upon the appellee or his co...