Scott v. Kimerling, Civ. 3009, 3010

Civ. 3009, 3010 | Ala. Civ. App. | Jan 13, 1982

The plaintiff sued the defendants on open account in the District Court of Jefferson County. A default judgment was taken by plaintiff against defendants.

Thereafter, the defendants sought to appeal to the Circuit Court of Jefferson County. In its "Notice of Appeal" from the district court to the circuit court the defendants demanded a trial by jury and also stated the following: "I refuse to post any bond or pay any money to enjoy my right to trial by jury."

The plaintiff filed in the circuit court a motion to dismiss defendants' appeal for failure of defendants to "post" bond for costs or give affidavit of substantial hardship. The trial court granted plaintiff's motion and defendants appeal to this court.

The defendants, pro se, acknowledge that they refused to pay "costs." They contend that to pay such cost would violate certain of their constitutional rights, both state and federal. Suffice it to say, we find no merit in their contention.

The Code of Alabama 1975, section 12-12-70, states as follows:

Civil cases. — Any party may appeal from a final judgment of the district court in a civil case by filing notice of appeal in the district court, within 14 days from the date of the judgment or the denial of a posttrial motion, whichever is later, or, if the appeal is to an appellate court, within the time prescribed by the Alabama Rules of Appellate Procedure, together with security for costs as required by law or rule.

There are apparently no express costs for filing in the circuit court an appeal from the district court. However, Rule 7 of the Alabama Rules of Judicial Administration provides as follows:

Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.

Opinion No. 16, Opinion of the Clerk, Supreme Court of Alabama, 362 So. 2d 1259" court="Ala." date_filed="1978-10-03" href="https://app.midpage.ai/document/opinion-of-the-clerk-7492688?utm_source=webapp" opinion_id="7492688">362 So.2d 1259 (Ala. 1978), stated in part as follows:

It is my opinion that an appeal from a district court to a circuit court is a case within the meaning of the words, "cases filed," in § 12-19-71; that a filing of an appeal is a filing under Rule 7, Rules of Judicial Administration; and that the fee for docketing an appeal from the district court to the circuit court is $35.00.

The distinguished clerk of the supreme court is to this court eminently correct.

We therefore find that there are appropriate costs to be paid upon taking an appeal from the district court to the circuit court. We further find that section 12-12-70 requires the payment of these costs. Furthermore, such requirement does not violate any constitutional "rights" of defendants. "Costs" are a part of the burden of litigation and no litigant is deprived of a constitutional right by a statute which imposes costs on him. See C.J.S. Costs § 3, and cases cited therein.

Needless to say, the trial court did not err in dismissing defendants' appeal.

The case is due to be affirmed.

AFFIRMED.

All the Judges concur.