Bagwell Steel Co. v. Tinker

56 So. 2d 114, 256 Ala. 585, 1951 Ala. LEXIS 179

• Court: Supreme Court of Alabama
• Decided: October 4, 1951
• Docket: 6 Div. 182
• Status: Published

Opinions

BROWN, Justice.

The appellee M. A. Tinker filed suit March 9, 1950, to recover compensation under the provisions of the elective Workmen’s Compensation Act, Code 1940, Tit. 26, § 270, for an injury which he alleged that he received as the result of an accident arising out of and in the course of his employment. The defendant (appellant here) contested his right to compensation on the ground that he did not receive the injury as the result of an accident arising in the course of his employment, but that he was injured in consequence of his own negligence or wrongful act,- — becoming intoxicated while on duty.

The case was heard before the court without a jury on September 27, 1950, on testimony and documentary evidence, the testimony of the witnesses being given in open court, resulting in a judgment awarding compensation on September 27, 1950. The defendant filed motion for- new trial which was heard by the court and overruled on October 20, 1950. The petition for writ of certiorari was filed December 5, 1950,-— after the expiration of thirty days from, the date of the judgment and also from the date of the order overruling the motion. for a new trial.

Section 297, Title 26, Code of 1940, regulating the manner and time within which appeals must be taken in subsection E provides: “Appeal 'by certiorari. From such decree any aggrieved party may by certiorari within thirty days thereafter appeal to the supreme court or the court of appeals of Alabama.”

Taking an appeal within the time prescribed by the statute is jurisdictional. Exchange Distributing Co. v. Oslin, 229 Ala. 547, at page 549, 158 So. 743, and authorities cited in paragraph one of the opinion.

The appeal therefore will be dismissed.

Appeal dismissed.

LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.