Stewart v. Younger
| Decision Date | 27 July 1979 |
| Citation | 375 So.2d 428 |
| Parties | P. R. STEWART v. Judge Thomas N. YOUNGER et al. 77-741. |
| Court | Alabama Supreme Court |
Patricia R. Stewart, appellant in pro. per., Executor to the Estate of Felix I. Stewart.
Roscoe Roberts, Jr., of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for the Estate of Felix Isaiah Stewart, deceased.
This appeal by P. R. Stewart, one of the devisees of the Estate of Felix Isaiah Stewart, challenges the "Final Decree on Final Settlement" entered by the Circuit Court of Madison County.
Apparent upon the face of the record, however, is a fatal defect in this appeal. The latest order appealed from (the trial Court's order overruling Stewart's "Petition for Amended Order or Decree") is dated July 18, 1978. The notice of appeal was filed in the Circuit Court on August 30, 1978 43 days after entry of the July 18 judgment.
Assuming the order appealed from will support an appeal, the Alabama Rules of Appellate Procedure contain but one jurisdictional Rule. ARAP 4 provides:
". . . (T)he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from."
We held in Holmes v. Powell, 363 So.2d 760 (Ala.1978), that ARAP 25 (Emphasis in original.) In the interest of finality of judgments, the prescribed time within which a notice of appeal Must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court. Furthermore, it is our duty to notice the filing date and to dismiss the appeal upon our own motion when the notice of appeal is not filed with the trial court within the prescribed time.
APPEAL DISMISSED.
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Burgess v. State
...court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court.' Stewart v. Younger, 375 So.2d 428, 428 (Ala.1979) (emphasis in original). See also Hayden v. Harris, 437 So.2d 1283, 1287 (Ala.1983); State v. Kebe, 399 So.2d 348 (Ala.1981)......
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Stone v. Williams
...an appeal is jurisdictional. See, e.g., Threadgill v. Birmingham Bd. of Educ., 407 So.2d 129, 131-32 (Ala.1981); Stewart v. Younger, 375 So.2d 428 (Ala.1979) (per curiam). It is thus argued that Stone's failure to appeal the grant of summary judgment in favor of Williams, Jr. deprived the A......
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Bowater Inc. v. Zager
...appeal upon [its] own motion when the notice of appeal is not filed with the trial court within the prescribed time." Stewart v. Younger, 375 So.2d 428, 428 (Ala.1979). This Court more recently stated that "`[i]t is the duty of this Court to take notice of the filing date of an appeal and, ......
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Wallace v. Belleview Props. Corp., 1100902.
...to take notice of the filing date of an appeal and, if finding the appeal to be untimely, to dismiss it ex mero motu. Stewart v. Younger, 375 So.2d 428 (Ala.1979).’ Lewis v. State, 463 So.2d 154, 155 (Ala.1985). The Bagleys' notice of appeal, filed on April 29, 2002, almost four years after......