State v. Barton, 6 Div. 285
| Decision Date | 17 April 1952 |
| Docket Number | 6 Div. 285 |
| Citation | 257 Ala. 230,58 So.2d 450 |
| Parties | STATE v. BARTON. |
| Court | Alabama Supreme Court |
Si Garrett, Atty. Gen., and A. J. Harris, Asst. Atty. Gen., for appellant.
Wayne H. Weaver, Haleyville, for appellee.
This cause was submitted on motion to dismiss the appeal and on merits.
The gravamen of the motion to dismiss is that the transcript was not filed within the time prescribed by law, thereby requiring a sustention of the motion.
We refer to the provisions of the statute pertinent to the motion to dismiss:
Section 769, Title 7, Code, with respect to equity cases (this is an equity case), requires the appellant to file the transcript in the office of the clerk of the supreme court within sixty days from the date of the taking of the appeal.
Section 770 provides that if the transcript is not so filed, the appellee may on any Thursday after the first call of the docket present the certificate of appeal and certified copy of the security for costs of appeal or supersedeas bond and move the court for a dismissal or an affirmance, etc., but that the court may for good cause extend the time of filing the transcript (We interpolate that appellant made no application for the benefit of any extension of time, and the transcript comprises only five pages, including the certificate of the register.).
Supreme Court Rule 41, Title 7 Appendix, pp. 1019-1020, Code, provides:
'In all cases, either civil or criminal, of appeal to this court, taken in vacation, except those subject to call during the first week of the term, and in all cases, civil or criminal, appealed during the term, unless the transcript is filed with the clerk of this court not later than the first day of the first week of the term during which the case is subject to call in this court, the appeal shall be dismissed at the cost of the appellant, unless good cause be shown to the court, affidavit or affidavits, not later than the next Thursday, why said transcript was not filed within the time herein allowed.'
The construction this court has lately accorded these several provisions, as here pertinent, is, if appellant fails to comply by seasonably filing the transcript and makes no sufficient showing as justification or excuse for such failure, the appellee, if diligent, is entitled to have the appeal dismissed on motion. And this even though dismissal is addressed to the sound discretion of the court, since some showing of extenuation for failure to...
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...are §§ 769, 770, Title 7, Code 1940, and Supreme Court Rule 41. With respect to these provisions, this court observed in State v. Barton, Ala.Sup., 58 So.2d 450, 451: 'The construction this court has lately accorded these several provisions, as here pertinent, is, if appellant fails to comp......
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