Street v. Street

• Decision Date: 06 January 1897
• Citation: 21 So. 138,113 Ala. 333
• Parties: STREET v. STREET ET AL.
• Court: Alabama Supreme Court

21 So. 138

113 Ala. 333

STREET v. STREET ET AL.

Supreme Court of Alabama

January 6, 1897

Appeal from chancery court, Clay county; S. K. McSpadden Chancellor.

Bill by J. C. Street, as executor of the estate of Merit Street deceased, against A. J. Street and others, praying that the administration of the estate be removed into chancery, that it be referred to the register to ascertain all valid claims etc. The chancery court assumed jurisdiction of the administration, and referred it as prayed. From a decree confirming the register's report disallowing a claim of A. J. Street, he appeals. Reversed.

The body of the appeal bond was as follows: "The State of Alabama, Clay County. In Chancery, at Ashland, Ala. A. J Street v. J. C. Street, Executor of the Last Will and Testament of Merit Street, deceased. Judgment in favor of the defendant for costs of suit, on, to wit, the 5th day of March, 1895. We, Andrew J. Street, W. L. Black, and J. W. Street, acknowledge ourselves security for all the costs of appeal taken by Andrew J. Street from said judgment in said cause. And we, each for ourselves, waive all right to exemptions on any of our personal property from levy and sale under execution or other process."

Pearce & Steed, for appellant.

Knox, Bowie & Dixon and J. M. Chilton, for appellee.

McCLELLAN J.

J. C. Street, as executor of the last will of Merit Street, deceased, filed this bill against A. J. Street, J. W. Street, R. Y. Street, and others, as heirs and devisees or creditors, or both, of the said Merit, praying that the administration of the estate of the decedent be removed into the chancery court, that the will be construed, that said R. Y. Street be enjoined from further intermeddling and interfering with the property of said estate, that it be referred to the register to ascertain the valid claims against the estate, etc. The chancery court, by formal decree, assumed jurisdiction of said administration, and in due course referred it to the register "to ascertain all valid outstanding claims against the estate of the said Merit Street, deceased." On the reference thus ordered the claim of A. J. Street as an alleged creditor of said estate was propounded, considered, and disallowed. The report of the register to this effect was confirmed by the chancellor, and the present appeal is intended to bring under review that action of the chancery court.

Motion is made in this court to dismiss the appeal on the grounds: "(1) The alleged appeal was taken in this cause on, to wit, August -, 1895, since which time this division of the supreme court was called, and no transcript of the cause was filed at the first call to which it could have been filed, and no abstract of the record printed and furnished the appellee's counsel at that time. (2) No appeal has ever been taken in this cause." The appeal, if taken, was to the November term, 1895-96, commencing the first Tuesday in November, 1895, and ending the last day of June, 1896. The transcript was filed during that term; that is, on June 8, 1896. At that time also the abstracts required by the rule were filed. This is, therefore, not a case like Bayzer v. Mill Co. (Ala.) 13 So. 144; Sears v. Kirksey, 81 Ala. 96, 2 So. 90; and Winthrow v. Iron Co., 81 Ala. 100, 2 So. 92,-in which the transcripts were not filed until a term of the court succeeding that to which the appeal was taken; and those cases are not authority in support of this motion. The rule of this court which requires transcripts to be filed with the clerk by noon "of the first day of the first week during which such case is subject to call" does not authorize a dismissal of the appeal for a failure to so file the transcript, except upon motion of the appellee, "made not later than the next Thursday." The appeal in this case was to a time antecedent to the week allotted to the division to which the case belongs in the first half of the term of 1895-96, and it was therefore subject to call during that week. The transcript was not filed by noon of the first day of that week, nor at all during the week; but the appeal cannot be dismissed on that ground, because no motion was made to that end until long after the Thursday succeeding the day on which the record should have been filed. So that the rule in question does not aid the motion to dismiss this appeal. 89 Ala. XI, 8 South. v. This court has always exercised a liberal discretion in the enforcement of the rule requiring abstracts to be filed. This rule was violated by the appellant in not having prepared and printed his abstract in time for the submission of the cause when the Seventh division was called in January, 1895. But the motion to dismiss on that ground would appeal much more strongly to us if it had been made at that time. Coming, as it does, several months later, and after the appellant has prepared, printed, and filed a voluminous abstract, we are not inclined to a strict enforcement of the rule against him.

The second ground of the motion to dismiss the cause here, viz that "no appeal has ever been taken in this cause," is also untenable. If it be true that the bond for costs of the appeal is irregular, in that it refers to the decree intended to be appealed from as a "judgment in favor of defendant for costs of suit," it was clearly the right of the appellant to be informed by the motion-and more especially so when the submission thereon was without argument disclosing the point of objection-in respect of the particular defects complained of, to the end that the bond might be amended, or another substituted for it; and the failure of the motion to so direct attention to the infirmity objected to is a waiver thereof on the part of the appellee. 1 Enc. Pl. & Prac. 1002. Moreover, the bond in its present form is sufficient to support an appeal. Its use of the word "judgment," instead of the word "decree," would certainly not be vitiating. Its reference to the appellee as "defendant" in the court below, where he was complainant, is innocuous when it fully appears that the judgment intended to be appealed from was one against the appellant, who is incorrectly put in the place of plaintiff o...