Bell v. Pritchard

139 So. 2d 596, 273 Ala. 289, 1962 Ala. LEXIS 348

• Court: Supreme Court of Alabama
• Decided: March 29, 1962
• Docket: 6 Div. 439
• Status: Published

Opinions

LIVINGSTON, Chief Justice.

The bill of complaint as amended, the answer and cross bill of respondent, tendered only one question, and that is, title to Lot 19 in Block 1, Roebuck Park Survey, • in Jefferson County, Alabama, W. S. Pritchard was complainant in the court below and is the appellee here. Euthema Allen Bell was respondent in the court below and appellant here.

Appellee acquired fee simple title to certain acreage, including said Lot 19, by warranty deed from E. J. Reed and others in September 1926, and shortly thereafter divided the acreage.

Said Lot 19 was sold to the State of Alabama in 1930 for the 1929 taxes. In September, 1932, it was purportedly sold by the state, through state auditor, to one Lawler Watson, and the following month it was conveyed by statutory warranty deed by said Watson and wife to appellant, Euthema Allen Bell.

The appellant contends that she had been in such possession of the property as to make the “short statute of limitations” applicable. Sec. 295, Title 51, Code of 1940.

Complainant contends that the conveyance to Watson by the state auditor is void and that the áhort statute of limitations did not begin to run for failure to give notice to the owners which is required as a condition precedent under Sec. 316, Title 51, Code of 1940, and Sec. 3121, Code of 1923.

The case was tried on evidence heard ore tenus before the trial court, and the court rendered a decree in favor of W. S. Pritchard. From that decree, the respondent appealed to this Court.

Appellee moved to dismiss the appeal on the ground that the transcript of the record was not filed in this Court within the time prescribed by Supreme Court Rule 37.

The decree of the lower court was rendered on November 14, 1958, by Hon. Robert C. Giles, one of the judges of the Tenth Judicial Circuit of Alabama. The appeal was perfected on May 7, 1959. On July 2, 1959, the appellant was granted a 30 day extension in which to file the transcript in this Court by Hon. W. A. Jenkins, Jr., another Circuit Judge of the Tenth Judicial Circuit. The transcript was filed in this Court on August 4, 1959, within the extended time. The appellee contends that the extension was not valid nor proper since it was not granted by the judge who tried the case and rendered the decree. Appellee insists that “trial judge” in Rule 37 of the Supreme Court Rules is to be interpreted to mean “the judge who tried the case and rendered the decree,” and that he alone has authority to grant the extension. Rule 37 of the Revised Rules of the Supreme Court, 263 Ala. XXI, reads as follows:

“ * * * 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, * * * »

We do not think the words “trial judge” in Rule 37 meant to restrict the authority to grant an extension solely to the judge who tried the case and rendered the decree. The courts are not controlled by the literal meaning or language of a statute but by its spirit and intention. Hawkins, Judge, v. City of Birmingham, 239 Ala. 185, 194 So. 533; Davis & Co. v. Thomas, 154 Ala. 279, 45 So. 897.

Such a construction as advanced by the appellee would not be in accord with the spirit and intent of Rule 37. In the first place, the jurisdiction of a circuit judge is coextensive with the state; he has authority and power in one county as in another, and every person and all property within the confines of the state come within the influence of his authority. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473; City of Mobile v. Grason, 220 Ala. 349, 125 So. 221, and Cook v. State, 269 Ala. 646, 115 So.2d 101. So in the light of these decisions, one judge would have just as much authority to act on a matter as another unless it clearly appears to the contrary. Numerous jurisdictions have interpreted the words “court” and “judge” to be synonymous and that they will be construed as such whenever necessary to carry into effect the obvious intent of the statute, and whether the act is to be performed by the judge or the court is to be determined by the character of the act. See Words and Phrases for judicial constructions and definitions of “court,” “judge,” and “trial judge.” In James A. Head & Co. v. Rolling, 265 Ala. 328, 336, 90 So.2d 828, 834, we said, in respect to the interpretation of “the judge who rendered the decree,” as it appears in Equity Rule 62:

“ * * * But we do not agree that a party can be denied a rehearing in the circuit court because of the inability of the applicant to present the application ‘to the judge who rendered the decree.’ We would be compelled to construe the words trial ‘judge’ and trial ‘court’ as being synonymous when it is impossible to present the application to the judge who rendered the decree. * * * ”

The foregoing has application here. We construe “trial judge” in Rule 37 to mean any judge of the court when the judge who sat and determined the case is not available. There is nothing to show whether the judge who tried the case was available or not. Nevertheless, we have before us an extension granted and signed by a circuit judge, and it appears from the extension order that the appellant had good cause for an extension. The contrary not appearing, we will presume that Judge Giles was not available and that Judge Jenkins acted within his authority. Therefore, since we find the extension valid and proper and the transcript being filed within the extended time, the motion to dismiss is denied.