66 So. 878 | Ala. Ct. App. | 1914
The statute (Code, § 2837), authorizing appeals to the Supreme Court from “any final judgment or decree of the chancery, circuit, or courts of like jurisdiction,” contemplates a formal entry of the judgment or decree appealed from; and, until so entered, there is no “final judgment” which will sustain an appeal. The mere announcement of an'opinion by the court, or even the entry by the circuit or city court on the trial or motion docket of its rulings on demurrers or motions, is not a judgment, but merely a direction of the presiding judge to- the clerk as to what judgment should be entered on the records of the court. Until such direction has been acted on by the clerk, and formal judgment accordingly entered into the minutes of the court, reciting that “it is ordered and adjudged by the court,” or “it is the judgment of the court that,” etc., or other words of equivalent import, it is Avithout appealability, for, until such an entry, though it has “the character of potentiality, it 'lacks the character of actuality as a judgment, and is without probative force.” — Wynn, et al. v. McCraney, 156 Ala. 630, 46 South. 854; Morgan v. Flexner, 105 Ala. 356, 16 South. 716; Ferrell v. City of Opelika, 144 Ala. 135, 39 South. 249; McDonald v. Ala. Mid. Ry. Co., 123 Ala. 228, 26 South. 165; Long v. Holley, 157 Ala. 514, 47 South.
In the present case the appellant seeks to review the action of the lower court in dismissing on motion of the opposite party, an appeal taken by her to that court from a judgment rendered against her in a justice court, and in refusing to allow her to amend or make a new appeal bond. It appears that the appellee here had sued her (the appellant) in justice court, and that in that court he had obtained judgment against her on January 9, 1913, for $38.05; that later a garnishment was issued upon the judgment, and, the garnishee having answered “indebted,” the appellant, as defendant, filed a claim of exemption to the sum owed her hy the garnishee, and, upon contest of such claim by the appellee as plaintiff, there was judgment disallowed said claim on April 9, 1913. Appellant then, on April 12, 1913, filed with the justice an appeal bond, which was duly approved on April 12, 1913, which recited that:
“Whereas the said T. A. Davenport [plaintiff below and appellee here] has obtained a judgment before [naming the officer] on the 9th day of January, 1913, against Mrs. L. T. Edwards [defendant below and appellant here] for the sum of $38.05, besides costs, from which judgment the said Mrs. L. T. Edwards has taken an appeal to the circuit court for said county: Now,” etc. — the usual conditions following.
In the circuit court, the plaintiff (appellee) made motion to dismiss the appeal on the ground, among others, that the appeal, having been taken on April 12, 1913, from the judgment of January 9, 1913, was not taken within five days after the rendition of the judgment ap
Tbe appeal bond, as will be observed from reading tbe quotation from it as hereinbefore set out, expressly stated that tbe appeal was from tbe judgment rendered by tbe justice court “on January 9, 1913.” against appellant “for $38.05,” and not having been filed or approved, as before stated, until “April 12, 1913” (over three months after tbe rendition of tbe judgment mentioned), was filed and approved too late to perfect an appeal from that judgment. — Code, supra. However, tbe defendant (appellant), after tbe motion was made to dismiss tbe appeal, asked leave to amend tbe appeal bond or to file a new appeal bond, so as to show that tbe appeal was not taken from tbe judgment of January 9, 1913, for $38.05, as recited in tbe bond, but was taken from tbe judgment of April 9, 1913, disallowing her claim of exemptions. This amendment would have brought tbe appeal within tbe five days allowed by tbe statute mentioned.
While it seems to us, contrary to tbe insistence of appellant, that tbe other statute (Code, § 4719), which provides, among other things, that “no appeal or certiorari must be dismissed for any defect in such bond, if tbe party is willing to execute a sufficient bond,” has no application to tbe case here, since it seems that tbe appellant was not, by offering to make a new bond, seeking to remedy any defect in tbe original bond, but merely seeking thereby to change the appeal from one judgment to an appeal from another (there being two), yet we refrain from a decision upon tbe question, as tbe action of tbe lower court on tbe matter never proceeded to tbe point of a formal judgment, and we are without jurisdiction to entertain tbe appeal. • Tbe supposed
“December 6, 1913. Motion granted and appeal dismissed, and defendant given until January 15, 1914, to give supersedeas bond, and defendant offers court to amend appeal bond, and if the said supersedeas bond is not given on or by said date, then writ of procedendo issue.”
This does not constitute such a judgment as will support an appeal. — Authorities, supra. As a consequence, the appeal must be dismissed (Wagnon v. Kennan, 77 Ala. 519), which is accordingly done.
Appeal dismissed.