Alabama Public Service Commission v. AAA Motor Lines, Inc.

131 So. 2d 172, 272 Ala. 362, 1961 Ala. LEXIS 435

• Court: Supreme Court of Alabama
• Decided: March 23, 1961
• Docket: 3 Div. 845
• Status: Published

Opinions

COLEMAN, Justice.

The appellee has filed “Motion to Strike Transcript and Dismiss Appeal.” This motion, as argued by appellee, appears to rest on two propositions.

First, appellee insists that the transcript must be stricken because the transcript of evidence was not filed in the office of the register by the court reporter within sixty days from the date on which the appeal was taken as provided by Act No. 97, Acts of 1956, 1st Sp.Sess., page 143, which appears in Pocket Parts, Code 1940, as Title 7, § 827(1). As we understand appellee’s reply brief in support of the motion, appellee concedes, and we think correctly, that filing the transcript of evidence by the court reporter in equity cases is not governed by Act No. 97, supra, but is governed by § 769, Title 7, Code 1940, and Rule 37, of the Revised Rules of Practice in the Supreme Court as amended February 17, 1956, Appendix to Title 7, Code 1940. Smith v. Bank of Blountsville, 262 Ala. 65, 77 So.2d 357.

This court has said that no time was fixed in Equity Rule 57 prior to amendment in 1945, as to when the testimony must be “written out and filed in the cause” in order to dispense with the note of testimony. White v. White, 246 Ala. 507, 21 So.2d 436, 437. Neither § 769, Title 7, nor Supreme Court Rule 37 sets a time within which the court reporter must file the transcript of evidence in the office of the register on an appeal in an equity case. Provision is made by Rule 37 and § 769, supra, as to time for filing the entire transcript in this court on an appeal in equity. It is obvious that the transcript of evidence cannot be inserted in the record and filed in the Supreme Court by the register until it has first been filed in his office by the court reporter. If any requirement as to time of filing is to be placed on the reporter, amendment of rule or statute would appear to be necessary.

Second, appellee insists that the transcript (we understand the entire transcript filed here) must be stricken because it was not filed in/ the office of the Clerk of the Supreme Court within sixty days of the taking of the appeal.

Appeal was taken July 1, 1958. On August 22, 1958, the trial judge made an order extending for thirty days the time for filing the record in the Supreme Court. The record was filed here September 29, 1958, which was the last day of the extended time. Supreme Court Rule 37 recites in pertinent part:

“ * * * The trial judge may extend the time for filing transcript of the record in this court for good cause shown for not to exceed thirty days, and this extension may be made within the thirty additional days, provided that in no event shall such extension project the time for filing the transcript beyond ninety days. Thereafter the time for filing in this court may be extended only by this court for good cause shown upon petition in writing of which adversary counsel must have ten days’ notice. * * 263 Ala. XXI.

The order of August 22, 1958, recites:

“On motion of the Register, requesting additional time in which to prepare and file the Transcript of Appeal in the above styled cause, it is,

“Ordered by the Court That the time for filing the Transcript of Appeal in the Supreme Court of Alabama, be, and hereby is extended for thirty days from the date said transcript is due to be filed in said Supreme Court.”

Appellee argues that the order of the trial judge made August 22, 1958, is invalid because the record fails to show: (1) an application in writing for extension, (2) that appellee had notice, or (3) good cause for granting the extension.

(1) Rule 37 expressly provides for a "petition in writing” when application is made to the Supreme Court for extension, but the rule does not so provide when such application is made to the “trial judge.” If it had been intended to require a petition in writing to the trial judge, the rule could, and presumably would, have so provided. The expression of one thing is the exclusion of another. Because the rule expressly requires a written petition in one instance and omits that requirement in the other instance, we are of opinion that Rule 37 does not require a petition in writing where application for extension is made to the trial judge.

(2) Likewise, the rule expressly provides that “adversary counsel must have ten days’ notice” when the application for extension is made to “this court,” but omits the requirement of notice to the adversary when the application is made to the “trial judge.” Consequently, we are of opinion that Rule 37 does not require notice to the opposing counsel where application for extension is made to the trial judge.

(3) Rule 37 provides that the trial judge may extend the time “for good cause shown.” As already stated, the rule does not require a written petition or notice to adversary counsel when application for extension is made to the trial judge. The rule does require a written order of the trial judge extending the time. The rule does not, however, require the order to state the “good cause” on which the order is based.

In Harbin v. O’Rear, 264 Ala. 190, 86 So.2d 279, cited by appellee, the application considered was that made to this court, not to the trial judge. Rule 37 provides that “this court for good cause shown upon petition in writing” may grant extension of time. The rule does not require that the good cause shown to the trial judge must appear in the record. In Harbin v. O’Rear, supra, the rule applied was the requirement that good cause must be shown in the petition to this court, and for failure so to show good cause the extension was denied and the appeal was dismissed. That rule does not apply here where we are considering the application to the trial judge.

It is established that error will not be presumed. In the absence of a contrary showing, the presumption on review is that the trial court acted in accordance with the law. Crossley v. Davies, 253 Ala. 275, 44 So.2d 439. In the absence of a showing that the action of the trial judge in extending the time was arbitrary or capricious, we will presume that good cause was shown for his granting of the extension. Because a valid extension was granted by the trial judge, the record was timely filed in this court and the motion to dismiss the appeal is due to be and is denied.