Witherow v. Woodward Iron Co.

• Decision Date: 18 February 1887
• Citation: 2 So. 92,81 Ala. 100
• Parties: WITHEROW AND ANOTHER v. WOODWARD IRON CO.
• Court: Alabama Supreme Court

2 So. 92

81 Ala. 100

WITHEROW AND ANOTHER v. WOODWARD IRON CO.

Supreme Court of Alabama

February 18, 1887

Appeal from city court of Birmingham.

Motion to dismiss appeal.

In this cause the appellee moved to dismiss the appeal, (1) because it appears from the record herein that said appeal has been discontinued; (2) because it appears from the record that prior to the ninth day of March, 1886, the appellee recorded the judgment appealed from, in the city court of Birmingham against the appellants, from which the appellants on the ninth day of March, 1886, sued out their said appeal in said cause returnable to the first Tuesday in June, 1886, and on the said ninth day of March, 1886, executed their bond for the cost of said appeal showing that said appeal was made returnable to the first Tuesday in June, 1886, and because no transcript of the record in said cause was filed in this court during the term to which said appeal was so taken and made returnable, nor was the said cause docketed in this court, nor any order made therein during the said term, and that said record was not filed in this court until the seventeenth day of December, 1885; and (3) the said appellee now, for the same reason, moves the court to strike said cause from the docket of this court. The notice of the appeal in this cause, by the clerk of the said city court of Birmingham, notified the attorneys of record of the appellee "to appear on the first Tuesday in June, 1886, of the present term of the supreme court of said state, then and there to defend an appeal which Witherow & Gordon have sued out, returnable to said court, to reverse a judgment which Woodward Iron Company, at the July term, 1885, of the city court of Birmingham, Jefferson county, recovered against Witherow & Gordon for the sum of fifteen thousand ($15,000) dollars."

Webb & Tillman, for the motion.

Hewitt, Walker & Porter and Lane & Taliaferro, contra.

PER CURIAM.

The motion is to dismiss the appeal on the ground that the transcript of the record was not filed during the term of this court to which the appeal was taken, and that this fact operated as a discontinuance of the cause. The judgment was rendered in the court below in October, 1885. The appeal was taken in March, 1886, returnable to the first Tuesday in June, 1886,-a term of this court which ended on July 31 1886. The transcript was not filed until December 17, 1886, or the next ensuing term of this court. The motion to dismiss was made on the same day the transcript was filed.

It is the opinion of the court that the motion to dismiss must be sustained, on the authority of the case of Scears v. Kirksey, ante, 90, (decided at the present term,) from which it cannot be distinguished on any sound principle. For 30 years prior to the passage of the act of February 18, 1867, now embraced in section 3953 of the...