Carson v. Employers Casualty Company

282 So. 2d 913, 51 Ala. App. 90, 1973 Ala. Civ. App. LEXIS 388

• Court: Court of Civil Appeals of Alabama
• Decided: May 23, 1973
• Docket: Civ. 50
• Status: Published

Opinions

BRADLEY, Judge.

Judgment was entered by the Circuit Court of Madison County in favor of appellee after a verdict was returned by the jury pursuant to the giving of the general affirmative charge without hypothesis, and this appeal resulted from that judgment. After the appeal was taken but before submission, appellee filed in this court a motion to strike the transcript of the record. Submission here was taken on the motion and the merits of the case.

On the Motion

Appellee’s motion to strike the transcript of the record in this court and to affirm the judgment below is premised on the contention that the transcript of the evidence was not timely filed with the Circuit Court Clerk as prescribed by Title 7, Sections 827(1) and 827(la), Code of Alabama 1940, as Recompiled 1958, and that the time for filing the transcript of the evidence with the Circuit Court Clerk was not extended as provided by Title 7, Section 827(la), Code of Alabama 1940, as Recompiled 1958.

The record shows that the final judgment was entered on October 21, 1970, and the motion for new trial was overruled on December 3, 1970. Notice of appeal, appeal bond and citation of appeal were filed May 19, 1971. On May 20, 1971 the court reporter was notified of the appeal and requested to prepare the transcript of the evidence.

A thirty day extension for filing the transcript was granted on July 18, 1971; a sixty day extension was granted on August 17, 1971; a sixty day extension was granted on February 15, 1972; and a ninety day extension was requested and granted on April 15, 1972, but said order was not filed with the Clerk until August 16, 1972.

■ On June 30, 1972 the transcript of the evidence was filed with the Circuit Court Clerk. On July 10, 1972 appellee moved the Circuit Court to strike the transcript of the evidence for the reason that the transcript had not been filed within the time prescribed by law and that there were two periods of time, i. e., October 17, 1971 to February 15, 1972 and April 15, 1972 to July 11, 1972, wherein the Circuit Court had failed to extend the time for filing the transcript.

A hearing was had on this motion, at which time testimony was heard. The substance of the evidence heard was that the court reporter and attorney for appellant had worked closely together in getting the transcript of the evidence together and also in preparing and filing the requests for extensions of time within which to file said transcript with the Circuit Court Clerk; however, the court reporter left Huntsville and went to Mobile. It had been agreed before his departure that the court reporter would file the transcript with the Circuit Court Clerk before April 15, 1972. Shortly before this time, the court reporter was called on the telephone from the office of Circuit Judge Younger, and he assured appellants’ attorney that the transcript would be forthcoming shortly. A few days after April 15, 1972 appellants’ lawyer requested an extension of time from April 15. The time for filing the transcript was extended for sixty days from April 15, 1972. The order by the trial court granting the extension was not made until sometime after April 15, 1972.

The trial court denied the motion to strike the transcript of the testimony and stated that notice to prepare a transcript had been given to the court reporter, that seasonable extensions of time in which to file the transcript had been given by the trial court, that neither the appellant nor his attorney was at fault for any delay in filing the transcript, and that appellee had not been prejudiced by any delay.

Title 7, Sections 827(1) and 827(la), Code of Alabama 1940, as Recompiled 1958, govern the filing of the transcript of the evidence with the Circuit Court Clerk by the court reporter where an appeal is taken to the Court of Civil Appeals, and provide, in pertinent part, as follows:

“§ 827(1). . . If a party to a cause tried in such court desires to appeal from a judgment rendered, he shall, within five days after he perfects his appeal give notice to the court reporter, in writing, that he desires to appeal and request the evidence to be transcribed. The court reporter shall then promptly transcribe the evidence, . . . certify the same and file it with the clerk within sixty days from the date on which the appeal was taken, or within sixty days from the date of the court’s ruling on the motion for a new trial, whichever date is later. . . . ”

“§ 827 (la). The period of time within which the reporter must file the transcript may be extended by the trial court for cause. ...”

Appellee, in support of its motion to strike, argues that the above Code sections were not adhered to by the trial court for two reasons: (1) that the extensions were unreasonable and prejudicial, and (2) that the delay in the filing of the transcript of evidence was due to the fault of the appellants or their attorney.

The general rule concerning a failure to file the transcript of the evidence with the Clerk of the Circuit Court within the time allotted by statute and the failure to properly request and file an extension of time for such filing is set out in Johnson v. State, 269 Ala. 1, 111 So.2d 610.

As we understand the holding in Johnson, the Supreme Court said that the trial court has the right to grant extensions beyond the sixty day limit as provided in Section 827(1), supra, and that there is no limit on the length of the extension except that it must not be unreasonable, and provided that any delay must not be the fault of the appellant or his attorney or result in prejudice to the appellee.

In the instant case the trial court had the power to grant extensions of time for filing the transcript of evidence with the Circuit Court Clerk and the determination of the reasonableness of the length of those extensions was within its discretion. The exercise of such discretion will not be revised on appeal unless it has been abused, and we find no abuse of said discretion.

The next question is whether the delay was due to the fault of the appellants or their attorney, and we find that the evidence amply supports the conclusion of the trial judge that the delay was brought about by the failure of the original court reporter to file the transcript of the testimony.

Has appellee been prejudiced by the delay in the filing of the transcript of the evidence? We think not.

The appellee was the defendant in the trial court and received a directed verdict in its favor. It was not ordered to pay any money and it has not been deprived of a money judgment. We would also point out that no objections to the delay in the filing of the transcript were made until the transcript was filed with the Circuit Clerk.

The motion to strike the transcript of the record in this court and affirm the judgment below is denied.