Gray v. State Ex Rel. Attorney General

person qualifications s'ubjécted’to has' the' vote force of the'federal full under the power Voting laws this state. if 'he violates Act the. placing voting not 'the on list. names agree We with the trial court and requires We do not think the law think he eminently holding correct in Judge of Probate be faced with that choice. Voting Rights Act of 1965 is in con disagree However much we with the de- flict with the Constitution of the United Supreme cisions of the Court of the United void, States and opinion but our is of no States, case, disagree do we subsequent effect in the face of a decision court is bound decisions and has those Supreme of the Court of the United States. power disregard hot the them. Accord- That against court has said “As the re ingly, compelled we are to decide that the powers States, may served Congress of the injunction in the instant case is due to be use rational means to effectuate the dissolved. prohibition constitutional of racial discrimi nation in voting.” South Carolina Kat respondent The took this zenbach, 86 S.Ct. March 1966. court, decree of the trial but it is parent from the brief that he was As to federal examiners the court said anxious to have that decree disturbed in also: he, as do the members of this entertains the view that the of the appointment “The Act authorizes the correctly trial court states the The law. o‘f federal qualified ap examiners to list respondent, doubt, compelled felt plicants who are thereafter entitled to perfect in order that he could vote, subject expeditious to an challenge finally proper advised as to the method procedure. clearly appro This was conducting forthcoming election's. priate response problem, closely to the related to remedies authorized in Reversed and remanded. cases. See Alabama v. United [State of] States, All supra (371 U.S. concur. 83 S.Ct. Justices ; 112) Thomas, L.Ed.2d United States v.

362 U.S. 80 S.Ct. 535. 4 L.Ed.2d ” * ** h Sout Carolina v. Katzen . bach, supra. decision,

As we understand the the court

holds constitutional providing federal act for federal examin- 185 So.2d 125 injunction ers. The here is issued premise provi- the federal examiner Arthur D. GRAY et al. sions are unconstitutional and The void. Supreme Court of the United States holds contrary. premise

to the on which STATE ex rel. ATTORNEY GENERAL. injunction destroyed was issued is thus by the federal court. 7 Div. 630. Supreme Court Alabama. uphold injunction

To in the face of the federal decision to confront June Judge of Probate with dilemma April Rehearing Denied choosing punishment contempt between of the state court’s decree if he violates injunction placing the forbidden voters, being

names on the list of or of Billingsley, D. Shores

Arthur and Orzell Jr., Birmingham, Greenberg, Norman Jack Smith, York C. Amaker Geo. New B. appellants. City, for Flowers, Atty. Gen., and Richmond M. Gen., Anderson, III, Atty. Mark W. Asst. appellee. COLEMAN, Justice. pre- permanent making

From a liminary injunction, respondents endeavor 1963:, July The decree was rendered denied, Sep- rehearing Motions for were argued tember 1963. The .cause orally May and submitted n ... any appeal do not find We bond in the record.

The certificate of recites: ”* * * the name not 'state waived. American The certificate does Federa- Moss, Supreme surety any appeal bond. tion of Musicians v. 12, 13. Rule Court It is ordered that the be dismissed. de the rule that a long been It has Appeal dismissed. posit money is a sufficient appeal to this court. LAWSON, GOODWYN, MERRILL Foster, 14 Butler v. Title HARWOOD, JJ., concur. McCann, 25 323; King Owen On Rehearing. Thornton, 129 Ala. Griswold Barber, 237 Ala. Harris v. PER CURIAM. 160; of 186 American Federation So. Appellants argue holding our in this Moss, 169, 168 Musicians v. Ala. So.2d 277 contrary case is error because it is to “prior law,” “prior practice,” custom and “The the courts that of majority “prior practice law,” contrary question have considered the have de 7, provisions 805, to the of Tit. Code 1940. § deposit money cided that a of cannot contentions, of view these no author- given undertaking be in lieu of an or ity will be in cited this extension of the appeal pertinent bond on where the opinion that was .rule, announced after this cause specifically or. statute does not originally ” submitted this court. (65 deposit. authorize such- a A.L.R. 7) 2d 113 appeal An appellate is taken to an court, right, not as vested grace but Builders, Eagle S. & S. Inc. v. Truck Trans perfected of a statute and must pros be Inc., port, 346, 558; 50 Del. 130 A.2d Gor time1, pursuant ecuted to the and manner 23; Camp, don v. 2 Fla. Marks v. Waia limit, prescribed. Legislature can And Co., 188; hole Water 36 Haw. Beckwith v. right restrict or abolish the so City Co., Kansas &,Olathe Railroad 28 Kan. long attempt it as does not to restrict 484; Mallory, Alvord Son Ky.L. & v. 10 right superin court to exercise its 80; R. Sevier, State ex rel. Maxwell v. tendence and control over inferior tribunals (Mo.App.), 492; 179 S.W.2d Naum v. under Section 140 of the Constitution. Naum, 367, 424, 143 A.2d 65 A.L. 101 N.H. Bradford, Woodward Iron Co. v. 206 Ala. 1130; R. 2d Ran, Sommers v. De 53 Ohio 447, 803; 90 Martin, So. Lewis v. 210 App. 87, 4 267; N.E.2d Commonwealth v. 401, So. 635; Sparks 98 v. Blev Brock & Sitler, 604; 261 Pa. A. 104 Smith v. ins, Inc., 274 Ala. 2 Coffin, 636; 9 Ring S.D. 70 N.W. <§=>1. Appeal Error, Ala.Dig., gold Graham, Tex.Com.App., 13 S.W.2d 355; Hervey Forse, Tex.Civ.App., 253 uniformly court has held that 701; S. W.2d Epperson, Brooks v. 164 Va. an must be taken within the time 787; 178 Faw, S.E. United States v. prescribed by (here months, statute six 1 Cranch C.C. 486. 7, 788), and if not taken within that § jurisdictional it is and the be must right The purely statu may dismissed. This dismissal be mo tory. The are statute Dixon, tion. Wetzel v. 227 Ala. 148 So. mandatory ambiguity. and free of Knight, Williams v. 169 , , appellant having “The not filed an motu, So. or ex mero because this abbreviated or defective bond or one .jurisdiction is without to consider kind so to invoke the juris-, Weil, Irwin v. court, diction of impelled we are Funderburk, Snider v. ex mero mot'u 96 So. 928; to’dismiss this Boshell Phillips, jurisdiction. want of It cannot be 93 So. 576. case, brings question That to the By us when (b) giving secur- govern- ity an is “taken.” We cite the for the costs ing principles proved by our register, from cases. the clerk or (c) By giving having approved a su- “taken,” An within the persedeas required by bond conditioned as statute, meaning party of our when de law.” siring prosecute complied it has with the In Hildebrand First Bank National upon gives conditions which the law Fairfield, we right. only precedent, condition when said: exempt giving not “ * * * (Tit. Section by statute, filing prop is the with the 766), provides taking the manner of an official, prescribed er within the time appeal, 788), and section (Tit. taking statute for a sufficient done, and, the time in it which must be undertaking to secure costs. Kimbrell v. unless taken manner as Rodgers, 90 Ala. So. 241. provided, there it is taken at all." only “An pro- within the (Emphasis supplied.) statute, visions one of which [is] filing proper with the officer sufficient se- In of our and view statutes our curity appeal.” cases, for the of costs the Peters it appeal is obvious that an is “taken” Sons, v. Chas. Schuessler 208 Ala. 95 party desiring when the appeal, or his and there attorney, cases cited. proper files with the officer of court, writing the (a) a which a rea shows “The of uni decisions this court are security for son the claim that no or bond form to appeal the effect that the dates required appeal is and states that is an proper security filing the of of costs.” judgment taken from the or in the Danley Danley, 82 So.2d case; writing or (b) a which shows that Anderson, followed in Anderson v. 270 party desiring the to take the and Ala. Ridgeway 119 v. Love So.2d surety acknowledge his or sureties them lady, 268 108 Town Ala. So.2d security appeal, as for selves costs the of Co., of Vernon Maddox Motor approval proper on and which the of the of App. 689, security, if 92 So.2d endorsed; writing may (c) ficer be or a sufficient, if filed within must be and supersedeas consisting of condi a bond accepted by approved proper and the offi required by tioned as and which the law on cer, and will if the not be dismissed approval may proper en of officer the approval pre the comes after the time dorsed. taking appeal. Thompson scribed for an Menefee, statutory taking period The for the Helena, months, v. Town of Wade and that in this case is six So.2d 896. expired the denial six months from rehearing September on the of taking an is set manner of Hughes, Gavin in and reads: Code out 245; Equity From time to Rule 62. “Any appeal taken under the submission, eight than date of more chapter from the this rendition of later, nothing tran there was in the months decree, judgment shall or be shown approval of script giving or to show the following (a) no manner: bond When security any type costs. or for required filing security or of a is Appellants in brief that the parties state setting out the written statement they gave. register “approved” security by appealing signed party and appears record. by approval in the attorney record that No such or his or her of per- appeal, purported certificate of judgment an from the or The Andrews, day July, copied orig- O. L. Clerk.” part in our of of which tinent day. statutory marked the same opinion, re- It was “Filed”' shows that inal signed by writing, there a “security” for case was quirement cost of of party approved desiring “cash” filed and substituted deleted the word by no the clerk. But because were provision in our law there There therefor. any sureties, appellee made a motion to dis- to this or a cash bond for 11, 60, (Tit. miss to submission this court state. appellate court conditionally, proper nonresidents, applies granted relating it but when appellate added, sureties the court went ahead only not to were to trial courts and our There, early was v. Fos- to decide the issues. courts). In the case of Butler taken, transcript ter, since showed a se- court held that costs, curity appellant, signed had permitted receive for an officer to no statute Here, bail, approved by been al- deposit money the re- clerk. as in lieu a bond, ready security out, pointed there is no for ceipt in lieu a cash $500 by any- signed by anyone approved by statute, costs prescribed not received appellants one. The two cited are discharge of official cases clerk in the apt. law, duty prescribed by neither were liable to the clerk nor his sureties question We come now the of waiver. County money, it had for the Treasurer security Appellants contend “When no property or the not become the of the State n whatever for costs on has been filed ; county. appellee and the has allowed the cause to be objection opinion, on the merits without original . As in our “It has submitted stated defect, money deposit objection to that lack of se- long rule been the curity costs is held have been is not sufficient waived,”- Pridgen, and peal cited are Elson v. to this court.” 110, 2 241 Ala. So.2d and Walker v. ' they appellants But state brief Harris, 235 Ala. 213. In each 179 So. n appellant have found two where the cases women, appellants, the the of cases married posted appeal. cash for costs One case they made to affidavits that were unable Corpo- Loan is Williams v. Home Owners’ security give for costs and claimed an ex- There, ration, 184 So. 910. emption 7, 799, under Tit. and the certifi- § appellant the made an affidavit that she was they cates made showed -of give a married woman and was unable to ' claim. 'security-for costs on under § by the 799. This claim was contested appellee An 'to the entitled have by appeal. pellee a motion to dismiss the appellant proper exemp make a claim of conditionally, granted motion the 7, 766(a), tion under Tit. have him or file § days proper granted sixty but her to file security 766(b), proper a of costs under § security for costs. she to do When failed supersedeas proper under or a 766 § so, the was dismissed. cash zvas No Ordinarily, (c). appellee, not the know does posted the costs on for gets what the filed until he has Barber, transcript, case is v. the unless he checks with the other Harris 237 register prior receiving clerk the Ala. 186 But it different or to tran So. 160. script. There, appellant pro he to contest the from the instant case. desires If security priety sign (a), (b) (c), either or he can file Harris did his principal. getting á motion to dismiss and then the defective Instead of sureties to claim, security sign him, deposited the bond must corrected with he with or $50 the original appeal will But if clerk. The record shows that be- or the be dismissed. undertaking appellee signature does file a motion to dismiss neath Harris’ on the submission, words, prior the defect is waived. approved, the the are “Taken to

339 cases, submission, they cited In both Els on Walker will be considered as supra, security no for costs be- there was waived. appellants chosen the manner cause the had apply But waiver rule where does not They 7, 766(a). in Tit. outlined § was not taken within the statu-

had made an affidavit under Tit. Land, tory period. Journequin v. they women and unable were married Ala. So. was where the give required by security costs as for months, within a not taken six and motion required them This was all the statute filed, was to dismiss this court said: perfect appeal. They had do to they “taken” It an when did this. apl “Appellee’s motion to dismiss up appellee was to contest claim peal, of the cause filed after submission by making mo- a motion dismiss. The here, juris But a likewise came too late. Barber, tion was in Harris sustained question presented. Our au dictional Ala. 186 So. and Williams v. thorities are to the effect' that Corporation, Home Owners’ Loan by prescribed taken after appellants giv- 184 So. were motu, will be mero statute dismissed ex en give proper security time to a costs. for jurisdiction for as the court is without cases, supra, But in the Elson and Walker consideration of the Irwin v. cause. motion to dismiss was made sub- Weil, Car exemption mission and contest of the Carmichael, lisle claim was waived. 46, 148 Dixon, Wetzel So. 857. import Of similar Humphrey Law- “Appellant seeks to the result- avoid son, There, 54 So.2d 439. foregoing undisputed by facts exhibit- appellee contesting as- final tax certificates, ing clerk additional sessment the State. There was no se- the docket a notation effect shows curity costs, for but two so-called appeal by plaintiff ample notice signed by bonds were Attorney General that a bond for State, Attorneys two Assistant Gen- given by plaintiff prior costs was to en- eral Morgan County, and the Sheriff of trial; upon tering being motion made appeal being stated that “this upon, effect to that defendant Alabama, State the State elects to ground plaintiff was a nonresident giving security without for costs.” plaintiff’s One of counsel state. again, appellants Here the the did all that appeal filed affidavit that a notice was required law 7, of them under Tit. ample filed in the cause in likewise time. n (a); 72, exempt Tit.. does the security, State from giving etc. in actions “Conceding, deciding, without ad- the by by it.. When this statement the State’s missibility matters, plain- of all of these attorneys register, was filed with the the improved. tiff’s situation is not Neither appeal though was Even “taken.” one of appeal docket, notation the nor on appellants, sheriff, may the the have cause, a notice filed in the ‘ exemption, been entitled to claim the the requirement meets the of our statute. by contest had to be a dis- motion to .made enough given And it is clear' the bond be- prior miss to submission or the was defect trial, required by fore the statute to be waived. nonresidents, given by relevancy no has to matter the re- Our statute many quires that 'give security We'have cases that that the hold for appeal bonds, wrong -in appeal.’ defects such such as costs of Section Code dates, names, wrong clerical our errors and 1923. And decisions are uniform to like,"must be to brought only per- this court’s atten the effect that by tion to good motion dismiss when a to made fected sufficient securi- as jurisdiction this filed. voke the such

ty in some is defective executing a bond which Menefee, 218 Ala. Thompson v. juris respects Dean, but sufficient to 'transfer 587; v. So. Bedwell Gresham, Terry this court. Taylor, diction to Ory-Cohen 128 So. Nothing oc Chas. Peters v. 94 So. jurisdiction case to in this transfer Sons, curred Schuessler this equity court in -to circuit 26.” court. 628, 93 Phillips, In Boshell v. and we too late came summary, no (1) we hold that jurisdiction without court is that “this said in case as was “taken” this be dismissed.” it, must consider and it

to appeal statutes, (2) in our word is used court added: pre taken time no was within the law, happened (3) nothing scribed attorneys agree parties by their “The jurisdiction to circuit transfer from the cause, writing, in the is on file in which court, (4) court this court to this that where dismiss the make motion to no must jurisdiction, purported appeal has no in was not filed appeal bond because the motu, (5) be ex mero in dismissed request time, this court agree but cases, application can be there taken if was case as consider the statutes, rule nor do waiver the remedial the cause parties desire apply. §§ merits. settled Application rehearing denied. “Appeals court must be taken fixed This within statute. LIVINGSTON, J., LAWSON, C. necessary give jurisdiction SIMPSON, GOODWYN, MERRILL and of the cause. When HARWOOD, JJ., concur. late, jurisdiction of too court has no cause; dismissed, be even and it will COLEMAN, J., it, parties if consent concurs in the result. waive hearing writing for a on the merits. waived'by parties. Meyers cannot Martinez, 562, 50 South. (Tit. sections Code 1907.” 754, 755).'

§§

Since the in the instant case was 185 So.2d 132 statutory period, not taken within the there nothing which could be waived. FORD, LONNIE RUSSELL INC. Finally, appellants argue that dismiss- contrary al was of Tit. David MITCHELL. say which §§ defects, 6 Div. 251. appeals will not dismissed for etc., in or if bond of- Supreme Court of Alabama. fers to make an bond.

April 7, 1966. apply only These sections where type approvable

some given

for costs is in the time allowed for

taking come But order to sections,

within necessary these it

make an attempt in- sufficient to

Case Details

Case Name: Gray v. State Ex Rel. Attorney General

Court Name: Supreme Court of Alabama

Date Published: Jun 24, 1965

Citation: 185 So. 2d 125

Docket Number: 7 Div. 630

Court Abbreviation: Ala.