| Ala. | Jun 17, 1902
— This appeal was taken in vacation to tlie Supreme Court term next following. Tbe transcript was not filed witliin tlie time prescribed by law but was filed before tlie expiration of tbe term. Tbe motion to dismiss tbe appeal was not made on or before tbe next Thursday after tlie default in filing, and therefore is not witliin tlie provision of rule 45 of Supreme Court practice, which is to effect that for default in filing a transcript as therein required tbe appeal “may, in tbe discretion of tbe court, be dismissed on motion of appellee, if made not later than the next Thursday.”—Street v. Street, 113 Ala. 333" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/street-v-street-6516970?utm_source=webapp" opinion_id="6516970">113 Ala. 333. The giving of tbe appeal bond effected the appeal within tbe year allowed for appealing, and it not appearing that tbe delay which occurred in giving notice of tbe appeal was due to appellant’s fault or to cause other than tbe failure of Hie officers to perform tbe duties required by tlie statute, such delay will not be treated as a ground for dismissing tlie appeal or for striking out tbe assignments of error.— Kimbrell v. Rogers, 90 Ala. 339" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/kimbrell-v-rogers-6513974?utm_source=webapp" opinion_id="6513974">90 Ala. 339.
Plaintiff claimed to have obtained title to tbe machinery sued for from tlie Progress Manufacturing-Company, a private corporation. It ivas proven by tbe deposition of a witness and without dispute that tlie latter corporation bad made a conditional sale of tbe machinery to defendant, tbe transaction being evidenced by defendant’s notes for purchase money wherein there was an express reservation to tbe. vendor of title together with tlie right to> take possession of tbe property in case of default, and that tbe notes were not paid. In tbe deposition is tlie following among other statements of tbe witness: “Tbe Progress Manufacturing Company is no longer in existence. It has been succeeded by tbe Martin Machine Works, which concern bought out all tbe property and assets of every kind owned by tbe Progress Manufacturing Company. It still owns all tbe assets of tlie Progress Manufacturing Company.” There was exhibited in and introduced as part of tlie deposition a writing purporting to be a transfer to tbe plaintiff from tbe Progress Manu-
But apart from the evidence excluded, there was in the remainder of the deposition, evidence introduced without objection, tending to prove plaintiff’s purchase of the property, its right to possession of the same and of defendant’s refusal to deliver it on demand made prior to commencement of the suit; and as to matters set up in the special pleas there was conflict in the evidence. Under such conditions the charge given at, defendant’s request invaded the jury’s province.
It will be ordered that the motion to- dismiss the appeal and to' strike assignments of error be overruled, that the judgment be reversed and that the cause be remanded.