Curry v. Forte

BRADLEY, Judge. Submission of this case was taken on motion and merits. Appellee, in its motion to dismiss the appeal, alleges that appellant failed to abide by the provisions of Title 7, Section 801, Code of Alabama 1940, as Recompiled 1958, which require that the clerk of the circuit court issue and have served upon the adverse party to the appeal a “Citation on Appeal” notifying said party that an appeal has been taken and the day to which it is returnable. [498] The appellant filed with the circuit clerk a notice of appeal and had a copy thereof served on the appellee’s attorney by the sheriff, but the record does not reflect that a citation on appeal as required by Section 801, supra, was issued by the clerk. The Supreme Court has consistently held that the failure to issue and have served on the adverse party the citation on appeal as directed by Section 801, supra, requires a dismissal of the appeal. Mid-State Homes, Inc. v. Roberts, 288 Ala. 86, 257 So.2d 333; Lovelady v. Thomas, 273 Ala. 246, 139 So.2d 335; Bowlin v. Bowlin, 267 Ala. 655, 104 So.2d 630. Due to the above enumerated decisions of the Supreme Court, we conclude that we have no alternative but to dismiss the appeal in this case for the failure of appellant to have issued by the circuit clerk and served on appellee or his attorney a "Citation on Appeal” as required by Section 801, supra. Appeal dismissed. WRIGHT, P. J, and HOLMES, J., concur.