372 So. 2d 350 | Ala. Civ. App. | 1979
This controversy arose out of the following facts: Plaintiff was appointed administrator of his son's, Excel Pugh's, estate on December 2, 1974. At the time of his death, Excel Pugh owed Alabama National a debt which was insured by a credit life policy. The insurance proceeds exceed the balance owed on the debt by $2,501. On February 10, 1975, after receiving notice of death and inquiry as to the benefits of the policy, Alabama National issued a check for $2,501 payable to "The Estate of Excel Pugh," and sent the check to an address in Winfield, Alabama, indicated in the file as that of the deceased. The check came into the possession of Ruby Pugh, a former wife of Excel Pugh who had been divorced from Pugh prior to his death. The check was *352 presented at First Federal Savings Loan of Hamilton (FFSL) in Winfield by Ruby Pugh, and endorsed "The Estate of Excel Pugh." A savings account was opened in the name of Douglas Wayne Pugh or Ruby Pugh equal to the amount of the check by FFSL. Douglas Wayne Pugh was a minor child of the deceased. FFSL endorsed the check "All Prior Endorsements Guaranteed," and deposited it in the Winfield State Bank from whence it was forwarded through commercial channels to Alabama National for payment on February 14, 1975. Plaintiff learned of the existence of the credit life policy on October 26, 1977, and called upon Alabama National for payment of the proceeds. Alabama National did not receive a copy of letters of administration on the estate of Excel Pugh until October 31, 1977. It immediately called upon the Winfield bank and FFSL for payment. They refused. Plaintiff filed suit against Alabama National and FFSL. Alabama National filed cross-claim against FFSL. The trial court found in favor of plaintiff in the amount of $2,501 against defendants, and against FFSL for $2,501 in favor of Alabama National on its cross-claim. FFSL filed an appeal. Alabama National moved to dismiss the appeal on the ground of lack of notice under Rule 3 (d)2, ARAP. If the motion is to be denied, Alabama National seeks to cross appeal for failure of trial court to award it attorney fees. Plaintiff in brief also claims error in failure to grant it interest in the judgment.
Plaintiff did not appeal the trial court's judgment. He has no right here to complain of error. The motion of Alabama National to dismiss the appeal is denied. Failure to properly serve copies of notice of appeal as directed by Rule 3 (d), ARAP is not jurisdictional. (Rule 2, ARAP. Commentary to Rule 3.) The motion to dismiss fails to sufficiently support its allegation of lack of service of notice. Neither may an appeal be prosecuted as an alternative to a favorable ruling on a motion to dismiss. Alabama National's right to appeal was not derivative from that of FFSL. It had its own appeal of right under Rule 3 if it desired to do so. It failed to comply with that rule. We do not decide whether Alabama National had sufficiently saved error by failing to file a post-trial motion under Rule 59, ARCP.
The primary issue is whether judgment in favor of Alabama National and against FFSL as the guaranteeing endorser of the check was erroneous. We hold that it was not.
The cross-claim of Alabama National claimed right of recovery under either §
FFSL further presents as a defense failure of Notice of Dishonor under §
FFSL also contends that the provisions of §
As we affirm the judgment in favor of Alabama National and against First Federal Savings and Loan of Hamilton upon authority of §
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.