Strain v. Irwin
| Decision Date | 15 April 1915 |
| Docket Number | 8 Div. 822 |
| Citation | 199 Ala. 592,75 So. 151 |
| Parties | STRAIN v. IRWIN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.
Action by June Irwin against Tom Strain. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Motion to dismiss overruled.
See also, 195 Ala. 414, 70 So. 734.
Werf & Lynne, of Decatur, and C.L. Price, of Albany, for appellant.
O Kyle, of Decatur, for appellee.
This cause was submitted in the Court of Appeals upon the motion to dismiss the appeal, made by the appellee. The records of that court disclose that the submission was only upon the motion, and not on the motion and the merits.
The point is taken by the appellee that the appeal should be dismissed because of the insufficiency of the appeal and supersedeas bond, for that it misdescribes the judgment from which the appeal is taken, citing in support thereof the cases of Dumas v. Hunter, 28 Ala. 688 Satterwhite v. State, 28 Ala. 65, Williams v. State, 26 Ala. 85, and Carey v. McDougald, 25 Ala. 109.
The misdescription of the judgment contained in the supersedeas and appeal bond, complained of by counsel for appellee, is that the bond recites that the judgment was rendered May 6, 1914. An examination of the record, however, seems to disclose that the judgment was in fact rendered on May 13, 1914, as the last date noted in said judgment is of that day, the same beginning as follows: "Now, on this the 13th day of May, 1914, come the parties," etc.
The bond therefore gives the date of the judgment as the 14th day of May, and the record seems to show the date May 13, 1914. In this state of the record, under our statutes (section 2886, Code 1907), even if this description should be held to be a matter of material importance, this court would not dismiss the appeal, but would first give opportunity for a corrected bond to be given. Here, however, we do not reach that point, as we think the bond sufficient to support the appeal. The bond recites that the appeal is taken, to quote the language of the bond:
"From a judgment rendered in the circuit court of Morgan county in favor of June Irwin against the said Tom Strain, for malicious prosecution and false imprisonment, in which suit June Irwin was plaintiff and Tom Strain was defendant, for the principal sum of $75, together with $105.95 court costs, from which said judgment said Tom Strain has applied for and obtained an appeal to the Court of Appeals of Alabama."
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Colbert County v. Tennessee Valley Bank
... ... the Code were not statutes when the decision in Davis v ... McCampbell, supra, was rendered (3 C.J. 1265); in Strain ... v. Irwin, 199 Ala. 592, 75 So. 151, the judgment was ... misdescribed as to the date of its rendition; in ... Sloss-Sheffield Steel & Iron Co ... ...
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Wilder v. Bush
...Street v. Street, 113 Ala. 333, 21 So. 138; B.T. & S. Co. v. Currey, 175 Ala. 373, 57 So. 962, Ann.Cas. 1914D, 81; Strain v. Irwin (November term, 1914) 75 So. 151; Thompson v. Campbell, 52 Ala. 583. Timely having been made, the amendment necessary to perfect the appeal bond was properly al......
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Green v. T.R. Miller Mill Co.
... ... appeal); Cox v. Poer , 45 Ala.App. 295, 297, 229 ... So.2d 797, 799 (Civ. 1969) (quoting Strain v. Irwin , ... 199 Ala. 592, 593, 75 So. 151, 152 (1915), quoting in turn 2 ... Cyc. 839) ("' "A misrecital of the date of ... ...
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Cox v. Poer
...of the notice the correct date of May 29, 1967, was used five different times. The incorrect date was only used once. In Strain v. Irwin, 199 Ala. 592, 75 So. 151, where supersedeas and appeal bond cited an incorrect judgment date which the appellee argued made the appeal insufficient, the ......