Nabors v. Brown

SIMPSON, J. It appears from the record that the appeal was taken on the 10th day of September, 1910, and the transcript was not filed until November 21, 1911, so that the entire term of this court, commencing November 14, 1910, passed before the case was placed upon the docket. The statute requires appeals taken in vacation to be made returnable to the next term of the Supreme Court, and- under our decisions such appeal must be dismissed, on motion seasonably made, at the next ensuing term of the court. — Winthrow & Gordon v. Woodward Iron Co., 81 Ala. 100, 2 South. 92; Sears v. Kirksey, 81 Ala. 98, 2 South. 90; Porter et al. v. Martin et al., 139 Ala. 318, 35 South. 1006; Southern Railway Co. v. Abraham Bros., 161 Ala. 317, 49 South. 801. Since the submission of this case, the appellant has filed an affidavit of his attorney, to the effect that he did not receive the transcript from the clerk of the court until after the adjournment of the last term of this court. In addition to the fact that the affidavit should have been filed before the submission of the case, the case of Street v. Street, 113 Ala. 333, 21 South. 138, does not support the contention of the appellant, for the reasons [316] that, in that case, the transcript was filed before the expiration of the term to which it was returnable, and the motion to dismiss was not filed until after the time prescribed by statute, which facts are emphasized in the opinion of the court. In this case, the motion to dismiss was filed at the first day when it could be considered, to wit, at the first call of the division of the succeeding term of this court. In order to keep up the continuity of his appeal, the appellant should have had the case docketed and continued at the term to which the appeal was returnable. The appeal in this case must be dismissed. Appeal dismissed. All the Justices concur, save Dow-dell, C. J., not sitting.