Ellen v. Freshvale, Inc.

600 So. 2d 1038, 1992 Ala. Civ. App. LEXIS 273, 1992 WL 126547

Opinion

RUSSELL, Judge.

Laura Ellen filed a complaint in the trial court on May 18, 1988. Service was not perfected on the defendant, Freshvale, Inc., and on July 23, 1990, the case was dismissed. Ellen did not file a post trial motion or appeal; however, she subsequently began to file additional documents with the trial court. On May 3, 1991, the trial court entered an order to “clear up some apparent confusion” which had arisen in the case. It then affirmed its order of July 23, 1990, stating that the order remained in effect. Ellen filed a motion to set aside the May 3, 1991, order, and the trial court denied the motion. Ellen appeals from the denial of her motion. We dismiss the appeal.

A notice of appeal must be timely filed to invoke the jurisdiction of the appellate court; otherwise, the appeal must be dismissed. Rule 2(a)(1), Alabama Rules of Appellate Procedure. In the present case the trial court clearly dismissed the case on July 23, 1990. Ellen did not appeal from that order within the forty-two days required by Rule 4(a)(1), A.R.App.P. She appealed from the May 3, 1991, order affirming the July 23 order; however, because the case had been dismissed over nine months prior to the appeal, this court is without appellate jurisdiction. We have no alternative but to dismiss the appeal.

APPEAL DISMISSED.

ROBERTSON, P.J., and THIGPEN, J., concur.