City of Athens v. Cook

113 So. 2d 133, 269 Ala. 364, 1958 Ala. LEXIS 542

• Court: Supreme Court of Alabama
• Decided: August 28, 1958
• Docket: 8 Div. 885, 885-A
• Status: Published

Opinions

LAWSON, Justice.

This is a suit by Deloraise Cook, as administratrix of the estate of Albert Cook, deceased, against the City of Athens to recover damages on account of the death of her husband, Albert Cook, who was electrocuted on June 1, 1955, while working for the defendant. Plaintiff’s intestate was employed by the defendant City in connection with the maintenance and operation of its electrical distribution system.

On September 5, 1956, there was a jury verdict in favor of the plaintiff fixing damages in the sum of $12,700. Judgment was rendered on the same day in accordance with the jury’s verdict. The defendant City filed a motion for a new trial on October 1, 1956, which was overruled on October 24, 1956. An appeal was taken to this court on November 5, 1956. The certificate of appeal was filed here on November 17, 1956.

Submission in this court was on the merits, on appellee’s “Motion for Affirmance and for Judgment on Supersedeas Bond,” on appellant’s answer to that motion, on an appeal from a supplemental order or judgment purporting to correct certain entries in the transcript of the record concerning the date on which the transcript of the evidence was filed in the office of the circuit clerk, on several other motions, applications, petitions, answers, returns, agreements and affidavits, most of which relate to and were prompted by appellee’s insistence in her “Motion for Affirmance and for Judgment on Supersedeas Bond” that she was entitled to an affirmance of the judgment in her favor without any consideration of the errors assigned by appellant because the transcript of the record was not filed in this court within the time prescribed by Supreme Court Rule 37, as amended, to which we will refer hereafter as Rule 37, Code 1940, Tit. 7 Appendix. See 263 Ala. XXI.

Rule 37 provides that the transcript of the record shall be filed with this court within sixty days after the transcript of the evidence has been established in the court below, unless the time for filing the transcript of the record is extended by the trial judge or by this court. As to the right of the trial judge to extend the time for filing in this court, the rule provides: “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.”

No request was made of the trial judge for an extension of time within which to file the transcript of the record in this court.

But included in the appellant’s answer to appellee’s “Motion to Affirm and for Judgment on Supersedeas Bond” is the prayer, in the alternative, that this court enter an order extending the time for filing the transcript of the record for a period of sixty days from December 28, 1956, the day on which appellant contended the transcript of the evidence was established in the court below. The transcript of the record was filed here on February 12, 1957, well within sixty days from December 28, 1956. Appellant’s answer to appellee’s said motion was, as heretofore indicated, among the documents on which this cause was submitted to this court on May 14, 1957.

In regard to extensions of time for the filing of the transcript of the record by this court, Rule 37 provides:

“Thereafter [after ninety days from the date on which the transcript of the evidence was established in the court below] the time for filing in this court may be extended only by this court -for good came shown upon petition in writing of which adversary counsel must have ten days’ notice. The application to the trial judge and a ruling thereon is a prerequisite to making the application to this court, unless it be shown that the trial judge was unavailable or that the application to him for an extension was not made for a good and sufficient reason!’ (Emphasis supplied.)

This court can extend the time for filing the transcript of the record for as long as it deems proper under the circumstances of the particular case, since Rule 37 does not purport to limit it in that respect. Likewise, Rule 37 prescribes no time for the filing of the application in this court, but it should be filed before1 submission of the cause. However, our action on the application need not be taken prior to submission.

Here the application for extension was made to this court prior to submission on a petition in writing, of which counsel for appellee had more than ten days’ notice.

But, as shown above, no application for an extension was ever made to the trial judge and there is nothing in this record to indicate that he was unavailable.

So we come to the question as to whether the appellant has shown “a good and sufficient reason” for not making an application to the trial judge.

We are of the opinion that this question should be answered in the affirmative. The matters before us demonstrate beyond peradventure that counsel for the appellant did not become aware of any necessity for making application to the trial judge for an extension until it was too late, if in fact the transcript of the evidence was established in.the court below at the time contended for by appellee. We will not undertake to delineate all of the facts and circumstances bearing on the question at hand. We are clear to the conclusion that counsel for the appellant acted in good faith and should not be penalized for not making a request of the trial judge to extend the time for filing in this court. We are also of the opinion that the appellant has shown “good cause” why this court should extend the time for the filing of the transcript of the record here. Rule 37 gives us discretion in matters of this kind to the end that justice may be done. We have given much thought and careful study to this procedural question and feel that the ends of justice can only be met by entering an order that the time for filing the transcript of the record in this case be extended to include February 12, 1957, the day on which the record was filed here. This conclusion makes it unnecessary for us to pass on the numerous other matters upon which this cause was submitted except the merits.