Swain v. StateSwain v. State
- Reporters:
- , ,
- Before:
- Pelham
Tbе appeal in this case was dismissed on motion of tbe appellee, the state of Alabama, acting through its duly constituted officer for that purpose, tbe Attorney General. The motion was based on tbe ground that tbe appellant bad failed to file tbe transcript in time, and bad not taken any steps looking to а prosecution of tbe appeal in this court during tbe period tbe appeal was returnable bеre. Tbe appellant has filed an application for rehearing, insisting that tbe order of dismissal entered on tbe Attorney General’s motion was improperly made.
Tbe transcript in this case was filed bere for tbе first time on November 23, 1912, during tbe present Novem*7ber term, 1912, of the court, that commenced on the 11th day of Novеmber, 1912; and the record shows that the appeal in this case was taken on April 27, 1912. The case was returnаble under the statute (Code, § 2870) to the previous term of this court that adjourned, by operation of law, on thе last day of June, 1912 (act approved April 18, 1911 [Laws 191Í, p. 450] § 5, 1 Ala. App. 10, 11). No transcript or certificate of appеal having been filed, or other method pursued of docketing the case or prosecuting the appeal, in this court during the term to which the appeal was returnable, legal cause for a discontinuance had occurred; and, on the timely motion of the Attorney General, duly made, to dismiss the appeal because of this discontinuance, the motion was necessarily granted, and an order to that effect fоllowed.— Winthrow & Gordon v. Woodward Iron Co., 81 Ala. 100, 2 South. 92; Sears v. Kirksey, 81 Ala. 98, 2 South. 90; Powell v. State, 5 Ala. App. 150, 59 South. 328; Savannah Williams v. State, 6 Ala. App. 16, 60 South. 416; So. Ry. Co. v. Abraham Bros., 161 Ala. 317, 49 South. 801; Porter v. Martin, 139 Ala. 318, 35 South. 1006.
The appellant contends that the words used in section 2870 of the Code, “unless otherwise provided,” have reference to the statutes providing for a preparation of the transcript by the clerk and the time allowed for signing a bill of exceptions, and argues that if section 2870 is not so construed, in connection with these statutes, as to extend the time or term to which the appeal is made returnable, and thereby make the provisions of this statute conform to the time allowed for preparing the transcript аnd having the bill of exceptions signed, the unsuccessful party, desiring to appeal, will often be prevented from exercising the right of appeal.
Section 2870 provides when appeals in all cases shall bе returnable unless by the special provision of some *8statute, it is otherwise provided with reference tо a particular class of cases, as, for example, Avas provided by the following section (2871) with resрect to appeals from an order appointing, or refusing to appoint, a receiver. This statute, making appeals returnable at a certain time or to a certain term of the appеllate court, can neither be abridged nor extended by the statutes making provision for the preparаtion of a transcript and alloAving time for preparing, presenting, and having signed a bill of exceptions. The statute is in a different chapter of the Code from the other statutes making provision for the transcript аnd bill of exceptions, and it is the return time of the appeal only that is dealt Avith by this statute. It is the duty of the unsuccеssful party, if he desires to perfect an appeal, to have it returned or docketed in the aрpellate court, to AAdiich the appeal has been taken, by some proper procedure or method within the time required by this statute, whether the time for presenting and having signed a bill of exceptions has or has not expired. Many appeals are taken on the record alone, Avithout a bill of exсeptions; and, in such cases, the statutes making provision for the time of presenting and having signed a bill of exсeptions could have no meaning in connection with the statute providing Avhen appeals are rеturnable. Rut whether the transcript is or is not to contain a bill, and Avhether the time for signing has or has not expired, thе party taking the appeal must comply with the provisions of section 2870 as to the time provided for the return of the appeal to the court of review, for the right of appeal is purely the creаture of statute, and the time and manner of exercising the right in a given cause, being prescribed by statute, must be striсtly followed to be available to the party seeking the statutory benefits conferred. — White v. State. 134 Ala. 197, 32 South. 320.
*9If tbe transcript is to contain а bill of exceptions, and tbe time allowed for signing tbe bill bas not expired, or will not permit of tbe preparation of tbe transcript in time to comply with this statute, tbe party appealing is not thereby preventеd from exercising bis right of appeal, but, on tbe contrary, bas only to file a certificate of tbe appeal; and upon this tbe case can be docketed and continued on proof of these fаcts. But unless some appropriate action (there are several methods) be taken by tbe unsucсessful party to bring bis appeal into tbe appellate court within tbe return time provided by section 2870, thеn a hiatus takes place in tbe proceedings looking to the appeal, and a legal cause for a discontinuance occurs.
This case is brought directly within tbe statute and tbe‘rule by this court and tbe Supreme Court in tbe decisions above cited. The motion of tbe Attorney General must prevail, and tbe application for a rehearing is denied.
Application for rehearing overruled.