81 Ala. 98 | Ala. | 1886
— This is a motion to dismiss the appeal, made December 16, 1886 — the day on which the transcript was filed, and the cause docketed. No previous motion or proceedings in the cause had been had or moved for in this court.
On October 20, 1885, Kirksey recovered a money judgment against Sears, from which the latter prayed and
Before February 18, 1867, appeals to this court, if no transcript was filed, and no action taken in them in this court, expired with the term to which they were taken, and became functus. There were several methods by which the abatement could be prevented; but, if nothing was done, the abatement was complete. — Carleton v. Goodwin, 41 Ala. 153; 29 Buie of Practice in Supreme Court, Code of 1876, 158. The act approved February 18, 1867 — Sess. Acts, 547 — changed this rule. That act is § 3953 of the Code of 1876. It declares, that such appeal shall not be “ deemed or treated as discontinued, or as having otherwise lost its force, unless the appellee shall duly move for a discontinuance, after legal cause for discontinuance has occurred.” The change wrought by this statute would seem to be, that whereas, before its enactment an appeal thus conditioned would abate or expire of its own inertia ; under its provisions no such result would follow, unless duly moved for, after legal cause therefor had supervened. In the one case, the abatement took effect in the absence of any action or motion; in the other, it requires a motion to obtain its advantages.
In the case of Rhea v. Rhea, 54 Ala. 68 — decided in February, 1876 — the act of 1867 — Code, § 3953 — was considered ; and on its authority the appeal in that cause was dismissed. The appeal was from a judgment or decree of the Probate Court, the statutory bar of which was six months. It was, by its terms, returnable to the January term, 1875; but the transcript was not filed until the following June term, nor was there an order directing the cause to be docketed, or any other in reference to it. At that time this court held two terms; January and June of each year. The appeal was dismissed, on motion of the appellee. That case was brought directly within the statute, and within the rule as modified by the statute. The failure to file the transcript, or to take other action in the cause during the term to which the appeal was taken, furnished cause for abatement, and the motion brought the case within the requirements of the statute. The appeal was, therefore, properly dismissed.
And the case of Webb v. Robbins, 77 Ala. 176, while correct in all it decides, and on all the questions raised by the record, is yet probably imperfect and misleading in one of its paragraphs — the'second in the opinion. In that case, the transcript was filed during the term to which the appeal was taken, and hence the question we have been considering was not presented.
The motion to dismiss the appeal must be sustained.