Jones v. Shoemaker

HARWOOD, Justice. This is an attempted appeal from a decree rendered in a boundary line dispute. On January 9, 1970, the respondents below (appellants here) filed a notice of appeal, and applied for an order fixing the amount required for a supersedeas bond which was fixed by the court on that same day at $2,000.00. On January 20, 1970, the appellants filed security for costs of appeal, and also filed a supersedeas bond in the amount of $2,-000.00. The transcript of the record was filed in this court on April 9, 1970. Appellants’ brief was filed on May 25, 1970, within the extension of time granted by this court. No oral argument was requested. On June 4, 1970, counsel for appellees filed a motion to dismiss this appeal on two grounds, (1) that the transcript of the record was not filed in this court within sixty days from the time of taking the appeal as required by Supreme Court Rule 37, and (2) that the appeal was not taken within six months from the rendition of the decree in the lower court as required by Section 788, Title 7, Code of Alabama 1940. The cause was submitted on June 4, 1970 on motion to dismiss, and on the merits. The date of the taking of the appeal in this case was January 20, 1970, the day on which security for costs of appeal was filed. Danley v. Danley, 263 Ala. 390, 82 So.2d 534. The transcript of the record therefore should have been filed in this court within sixty days after January 20, 1970, or on or before March 21, 1970, no extensions of time for filing the record in this court having been sought, nor in the court below. Supreme Court Rule 37; Section 769, Title 7, Code of Alabama 1940; Bodiford v. Ganus, 281 Ala. 244, 201 So.2d 400. It is clear that Ground 1 of appellees’ motion to dismiss this appeal is valid, and necessitates a dismissal of this appeal. Nettles v. Nettles, 283 Ala. 457, 218 So.2d 269. This being so, no need arises to consider Ground 2 of the motion. Record stricken; appeal dismissed. LIVINGSTON, C. J., and LAWSON, MERRILL and McCALL, JJ., concur.