369 So. 2d 23 | Ala. Civ. App. | 1979
We are asked to review the circuit court's dismissal of a real estate broker's appeal from findings of the Alabama Real Estate Commission.
Calvin Mallory, a licensed agent and broker, was found guilty of certain violations by the Commission and his real estate license was permanently revoked. The Commission's oral hearing was held on May 22, 1978, and Mallory formally received notice of its findings on May 27, 1978. Mallory, acting pro se, filed notice of appeal to the circuit court on June 12, 1978, pursuant to §
The question presented is of first impression and requires a statutory interpretation.
"Findings made by the commission are deemed conclusive, unless within 30 days after notice of the decision of the commission has been given to an applicant or accused, said applicant or accused shall appeal said finding or ruling to the circuit court of the county of his residence. In the event of such an appeal, the circuit court shall hear the same de novo. Such appeal shall be taken by the filing of notice of appeal with the clerk of the circuit court of the county to which the appeal is taken. Any party taking an appeal shall post a satisfactory bond in the amount of $200.00 with the clerk of the circuit court, with at least one solvent surety, conditioned to prosecute such appeal to effect and, upon failure
to do so, to pay all costs and damages which may be adjudged against said party by the circuit court on such appeal. The clerk of the circuit court shall notify the executive director and assistant executive director of the commission of the appeal after the clerk has approved the appellant's bond, and the executive director and assistant executive director of the commission shall forthwith forward to the clerk of the circuit court and the charge against the applicant or licensee and the findings or rulings of the commission. . . ." §
34-27-38 , Code of Alabama 1975 with 1978 Amendment. (Emphasis added).
Mallory contends that the perfecting of an appeal under the statute is the filing of the notice of appeal within thirty days from the date of the Commission's decision.
The Commission submits that the filing of notice of appeal and the filing of the bond within thirty days are both required for perfection of an appeal under the statute. The Commission cites Taylor v. Major Finance Co.,
Our research discloses no case that deals with the requirements to perfect an appeal from findings of the Real Estate Commission under §
Of course the appeal in question is not governed by the ARAP but is instead purely statutory. We, however, feel that the principle embodied in the ARAP can be applied by analogy to the statute before us. Section
The trial court below erred by granting the Commission's motion to dismiss Mallory's appeal as untimely because he did not tender his surety bond until the thirty-first day after being informed of the Commission's decision. The matter is reversed and remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
BRADLEY and HOLMES, JJ., concur.