Jones v. Higgins

PELHAM, J. The case is submitted on a motion to dismiss the appeal, motion to establish a bill of exceptions, and on the merits. The motion to dismiss is based on the ground of a discontinuance, in that it is contended that the appellant has failed to file the transcript in time, and has taken no steps looking to a prosecution of the appeal here during the period the appeal was returnable. The record shows that the appeal was taken on the 23d day of December, 1912, and the transcript was filed in this court on the 29th day of September, 1913, and nothing was done during the interim to keep up the continuity of the appeal. The appeal is shown to have been taken during the term of this court commencing November 11, 1912, and was returnable to the first Monday of the term next after the expiration of 20 days from the date of the appeal. — Code, § 2870. The term to which the appeal was returnable expired by opera [627] tion of law on June 30, 1913. The earliest call of the division to which this case belongs at which it could have been submitted without prejudice occasioned by the delay (National Union v. Sherry, 61 South. 944) occurred during the week commencing April 14, 1913, and no certificate of appeal or transcript was filed until after the expiration of that call, and not until September 29, 1913. Nor was the case docketed and continued on certificate during the term at which it was returnable. No steps having been taken to keep up the continuity of the appeal between the date upon which it was taken, in December, 1912, and the date the transcript was filed, September 29, 1913, legal cause for a discontinuance has intervened, and the timely motion made by the appellee based on that ground must be granted. — So. Ry. Co. v. Abraham, Bros, 161 Ala. 317, 49 South. 801; Porter v. Martin, 139 Ala. 318, 35 South. 1006; Powell v. State, 5 Ala. App. 150, 59 South. 328; Williams v. State, 6 Ala. App. 16, 60 South. 416; Swain v. State, 7 Ala. App. 5, 60 South. 961; Nabors v. Brown, et al., 175 Ala. 314, 57 South. 374. Appeal dismissed.