Sterrett v. Beasley
| Decision Date | 21 December 1961 |
| Docket Number | 4 Div. 55 |
| Citation | 138 So.2d 700,273 Ala. 259 |
| Parties | Martha A. STERRETT v. Thomas D. BEASLEY et al. |
| Court | Alabama Supreme Court |
Cato & Hicks, Birmingham, and Crews Johnston, Clayton, for appellant.
A. B. Robertson, Jr., Clayton, for appellees.
This appeal is from a decree making permanent a temporary injunction enjoining appellant from holding an advertised mortgage foreclosure sale. The trial court held that the mortgage debt was barred as to all parties except Juanita Wise by the statute of limitations of twenty years. Tit. 47, § 174, Code 1940.
Appellees filed a motion to dismiss the appeal and it appears that the motion must be granted.
It was stipulated that Juanita Wise and Ruth Farrior were stricken as parties complainant, and were added as parties respondent; and that they appeared 'in their own proper person without counsel,' and they adopted as their pleadings the pleadings of appellant. Thus, Juanita Wise and Ruth Farrior were respondents when the court entered a decree in favor of complainants.
The appeal is by respondent, Martha A. Sterrett, alone. Tit. 7, § 804, Code 1940, provides in pertinent part as follows:
'Any party against whom a judgment or decree is rendered, may individually appeal to the supreme court or court of appeals without taking the appeal in the name of the other codefendant, but the clerk or register of the court from which the appeal is taken, shall issue a summons when the appeal is so taken, to such as do not join in the appeal to appear before the supreme court or court of appeals at the time to which the appeal is returnable, and unite in said appeal if he see proper, which summons may be served upon the party, or his attorney of record in the lower court. * * *'
The record does not show that Juanita Wise or Ruth Farrior were served with notice of the appeal. They have not been brought in by order of this court nor have they joined in the assignments of error or otherwise waived the notice required to be given them by the statute.
For want of proper parties when the submission was had, the motion to dismiss the appeal must be granted. Parker v. Downing, 268 Ala. 616, 109 So.2d 130; Chambers v. Fryer, 267 Ala. 320, 101 So.2d 294; Matthews v. Donald, 263 Ala. 575, 83 So.2d 291; McKinstry v. Thomas, 258 Ala. 690, 64 So.2d 808; Hagood v. Cleckler, 221 Ala. 379, 129 So. 2; Sherrod v. McGruder, 209 Ala. 260, 96 So. 78.
The transcript in this cause was filed in this court on March 27, 1961; appellant's brief was timely filed and request for oral argument made. Counsel for the parties appeared and argued the cause on November 7, 1961. Before submission and before counsel for appellees made his argument, he announced that he had filed a motion to dismiss the appeal because the record failed to show that notice of appeal had been given the parties respondent, Wise and Farrior, under Tit. 7, § 804. Argument was concluded and the case was submitted to this court.
On November 13, appellant filed a motion to withdraw the case from submission, assigning as grounds that the register of the lower court inadvertently failed to give notice to the two respondents, but that they had actual knowledge of the appeal. On November 15, we received written statements from respondents Wise and Farrior that they knew that the case had been appealed to this court and that they waived any further notice of the appeal.
Had a motion been made to delay submission when oral argument was made, or had we received the statements of the non-notified respondents before submission, there would have been no need for a dismissal of the appeal. But the act of submission to this court is the final deadline where both parties have notice of the deficiency. This seems to be the rule governing our cases.
In Barker v. Barker, 249 Ala. 322, 31 So.2d 357, the motion to dismiss was overruled because the codefendant joined in the assignments of error before submission. And this identical statement appears in Parker v. Downing, 268 Ala. 616, 109 So.2d 130; Chambers v. Fryer, 267 Ala. 320, 101 So.2d 294, and Matthews v. Donald, 263 Ala. 575, 83 So.2d 291, 293; 'For want of proper parties when the submission was had, the appeal is dismissed by the court ex mero motu.'
The same rule obtains where the record fails to show service of citation on the adverse party to the appeal, Tit. 7, § 801....
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City of Gadsden v. Civil Service Bd. of City of Gadsden, 7 Div. 603
...submission, unless there is a waiver, because the notice is necessary to the jurisdiction of this court on appeal. Sterrett v. Beasley, 273 Ala. 259, 138 So.2d 700; Bowlin v. Bowlin, 267 Ala. 655, 104 So.2d Appellee's motion to dismiss the appeal was filed in this court on October 2, 1963, ......