Lusk v. Capehart

129 Ala. 599 | Ala. | 1900

DOWDELL, J

This was a proceeding by petition in the circuit court of Marshall county for a common law ■’writ of 'certiorari for the purpose of reviewing certain proceedings had by-the commissioners’ 'court of said county in the granting of a ferry license. The appeal is taken from the final judgment of the circuit court rendered by said court on the hearing of said petition, and ■which purports to have been rendered on the 22nd day of April, 1899. The record shows that on September 1st, 1899, an agreement was entered into by counsel whereby it was agreed, “that the decree rendered by the court shall bear date as of April 22nd, 1899, which was the last day of the spring term, .1899, of said court, and that said petitioner, L. J>.Luslc, may within thirty days from the date of this agreement file the necessary appeal bond or bonds, but said'.bonds, shall, be dated, filed and approved as of any date between April 22nd, 1899, and May 22nd, 1899, and said appeal shall be treated as though said decree was actually rendered on April 22nd, 1899, and as though such bonds were filed and approved Avithin thirty days after April 22nd, 1899, and appeal taken in pursuance' of this agreement shall be treated a® in all respects regular.” It is thus shown by- the record that the appeal in this case was taken more than .thirty days after the rendition of said judgment. Section 2827, Code of 1896, relating to appeals in such cases, is as follOAV®: “From the final judgment of any circuit court or other court exercising the jurisdiction of such court, in any such proceeding, an appeal shall lie to the Supreme Court as in other eases; but such appeal must be taken within thirty'days after the final judgment is rendered, and shall be' a preferred cáse in the Supreme Court, and shall be decided at the first term to A\hich it is taken.” The provision in this statute, relating to the time within which the appeal must be taken, is clearly mandatory,, and.it is not competent for parties by agreement to alter, change or extend the provisions of said statute. The appeal not having been taken within the time required 'by the statute, this court is without jurisdiction to hear and consider the same.—Elliott’s App. Proc., §§ 111, 112; Holzclaw v. Ware, 34 Ala. 307; Gardner v. Ingram, 82 Ala. 339.

The appeal is dismissed.'