Central Foundry Co. v. Benderson

223 So. 2d 266, 284 Ala. 144, 1969 Ala. LEXIS 1043

• Court: Supreme Court of Alabama
• Decided: May 8, 1969
• Docket: 6 Div. 403
• Status: Published

Opinions

LAWSON, Justice.

This is an appeal from a final decree of the Circuit Court of Tuscaloosa County, in Equity.

George Benderson, on March 16, 1966, filed his bill in the Circuit Court of Tuscaloosa County, in Equity, against Central Foundry Company, a corporation, and International Moulders and Foundry Workers Union of North America, Local No. 67, an unincorporated association.

The prayer of' Benderson’s bill reads in pertinent parts as follows:

“ * * * and the Complainant prays that upon a hearing of this matter your Honors will render a declaratory judgment and declare the following:

' “A. That the Complainant has been an employee of the Respondent Foundry for more than fifteen (15) years prior to his retirement from the said Respondent Foundry, on, to-wit, July 6, 1965, at age sixty-three (63).

“B. That the Complainant is entitled to benefits as provided in the Pension Agreement and as modified by the Collective Bargaining Agreement in force between the Respondent Union and Respondent Foundry for the benefit of the Respondent Foundry’s employees at the time of the Complainant’s retirement from said Respondent Foundry.

“C. That the benefits be computed as provided in said agreements between said Respondent Foundry and Respondent Local No. 67.

’“D. That the Complainant is entitled to back pay of the benefits that have accrued to him since his retirement in, to-wit, July, 1965; and that he is entitled to receive the monthly benefits as above computed after the present date.

“E. And Complainant prays for such other, further, and different relief as may be just and proper in the premises, and as in duty bound, the Complainant will forever pray, etc.”

There was personal service by the Sheriff of Tuscaloosa County upon respondents on March 17, 1966. Neither of the respondents appeared and on April 19,. 1966, decrees pro confesso were taken against both respondents.

Submission for final decree was on the bill of complaint, decrees pro confesso, the testimony of the complainant given in open' court, and on certain documentary evidence.

The trial court on April 21, 1966, rendered a final decree in favor of the complainant, Benderson, where it was decreed, in part, as follows:

“B. That the Complainant was a member in good standing of the International Moulders and Foundry Workers Union of North America, Local No. 67, at all times from February, 1948, to July 6, 1965, and as a member of the Respondent Union and an employee of the Respondent Central Foundry Company, the Complainant was eligible for and is en- ■ titled to pension benefits as provided in the Pension Plan Agreement and Collective Bargaining Agreement which was in full force and effect by and between the Respondent Central Foundry Company and the Respondent International Moulders and Foundry Workers Union of North America, Local No. 67, prior to and at the time of the Complainant’s voluntary retirement from the employ of Central Foundry Company on July 6, 1965.”

The court further determined the ¿mount of monthly benefits to which the complainant, Benderson, was entitled under the Pension Plan Agreement and Collective Bargaining Agreement and entered a money judgment in favor of Benderson against the respondent, Central Foundry Company, for the accrued monthly benefits in the amount of $205.92 plus $22.88 per month for the remainder of his natural life.

From that decree the respondent, Central Foundry Company, a corporation, has appealed to this court.

Submission- was on motion and merits.

On the Motion

The appellant, Central Foundry Company, pursuant to Supreme Court Rule 37, applied to the trial court for a thirty-day extension of time within which to file the transcript in this court. That court granted the extension, which ran until January 18, 1967. On January 19, 1967, one day after the limit of the extension granted by the trial court, the appellant filed in this court a petition for a further extension of ten days. The transcript was filed in this court on the next day, January 20, 1967.

Appellee, Benderson, on January 23, 1967, filed his “Motion to Strike Appellant’s Motion for Extension of Time for Filing Transcript and Motion to Dismiss Appeal.”

Appellee’s motions are not well taken and they are denied. A very similar situation was presented to this court in Mitchell v. Austin, 266 Ala. 128, 130, 94 So.2d 391, where we said:

“The question posed is whether or not the appellant must apply to this court before the time expires for the filing of the transcript or can he wait, as he did here, until his filing time has passed and then request this court for an extension of time.

“The situation seems not to be covered by Rule 37, but the court, in general consultation in which all the Justices have concurred, has concluded that the application for the filing of the transcript here need not be made within the time (90 days) allowed in the lower court, but that on good cause shown this court may extend the time for filing the transcript either before or after the said 90-day' period allowable in the court below.”

In this case the showing, not controverted by. the appellee, that the delay in filing the transcript of the record in, this court was due to the illness of the register is, in our opinion, sufficient showing of good cause. See City of Athens v. Cook, 269 Ala. 364, 113 So.2d 133.