Collins v. Hodges Lumber & Mfg. Co.

THOMAS, J. Submitted on motion to dismiss the appeal and on merits. The judgment was on June 14, 1921, and the appeal bond was lodged with and approved by the clerk of the circuit court on September 10, 1921. Thus the appeal was taken within the time required by law. Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 South. 765; Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 South. 363; Kimbrell v. Rogers, 90 Ala. 339, 7 South. 241. The bill of exceptions filed with the presiding judge on September 9 was signed on the 10th day of September, and filed with the clerk of the circuit court on March 1, 1922. The notice of the appeal was given by that clerk February 27, the certificate of appeal filed in the Court of Appeals on February 28, 1922, and the transcript filed therein on February 5, 1923. The proceeding under the statute to dismiss an appeal for failure to file transcript within the time prescribed by law, so far as this record shows, was not complied with by appellee, as we shall indicate. The statute is: “That the appellant shall file the transcript in the office of the clerk of the Supreme Court, or Court of Appeals within sixty (60) days after the signing or establishing of the bill of exceptions or the expiration of the time for establishing the same. “That if the transcript is not filed in the office of the clerk of the court to which the appeal is taken within the time fixed by this act, the appellee may on any Thursday after the first call of the docket in the court to which the appeal is returnable, after the expiration of the time for filing of the transcript, present the certificate of appeal and certified copy of the security for costs of appeal, or supersedeas bond, and move the court for the dismissal of the appeal or affirmance of the judgment or decree appealed from. * * * ” (Italics supplied.) Gen. Acts, 1919, p. 85. The motion in the Court of Appeals is not shown to have been accompanied by a presentation of the “certificate of appeal and certified copy of the security for costs of appeal,” as required by statute to author-' *8 ize the dismissal of the appeal, in a proper case. Levy, Aronson & White v. Jones, 208 Ala. 104, 93 South. 733. The motion must have been “duly made” and presented to the Court of Appeals, as required by the statute. Merritt v. Blackwell, 208 Ala. 263, 93 South. 693. The motion to dismiss is denied. The suit was detinue for the wagon and steers specifically described in the complaint. The trial was had before the court, without a jury. The mortgage sought to be introduced, showing title to the property sued for, was shown to be due and -unpaid when the suit was brought. Defendant moved to exclude the mortgage on the ground that it was a “crop mortgage”; the motion was granted, and that evidence excluded. Thereupon plaintiff took a nonsuit on account of such adverse ruling, and appealed as he was authorized by statute to do. The evidence shows that when the mortgage was given the mortgagor was not engaged in agricultural pursuits, as recited in the mortgage, but in logging or hauling with the personal property described in the mortgage. The written instrument was sufficient and binding, nothwithstanding the fact that a “crop mortgage form” was used by the parties. Huckaba v. Abbott, 87 Ala. 409, 6 South. 48; Dyer v. State, 88 Ala. 225, 7 South. 267. No particular form is required of a mortgage. It sufficiently showed the, relationship of debtor and creditor; that the mortgage gave a lien on the property described therein as security for the debt recited. The property was specifically described, and there was ample provision contained therein for foreclosure after default. Bradford v. Proctor (Ala. Sup.) 96 South. 203; 1 Boyett v. Hahn, 197 Ala. 439, 73 South. 79; Oden v. Vaughn, 204 Ala. 445, 85 South. 779; Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 South. 931; Mervine v. White, 50 Ala. 388; Ellington v. Charleston, 51 Ala. 166; Lewis v. Davis, 198 Ala. 81, 73 South. 419; Bryant v. Bryant, 35 Ala. 315; Strong v. Gregory, 19 Ala. 146. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, C. J„ and McCLELLAN and SOMERVILLE, JJ., cbncur. Footnotes [1] 209 Ala. 299.