Evers v. Union Camp Corporation

310 So. 2d 870, 294 Ala. 13, 1975 Ala. LEXIS 1130

Opinion

FAULKNER, Justice.

The trial court entered judgment against the appellant and in favor of the appellee on June 17, 1974. The appellant gave notice of appeal on November 12, 1974, but did not file security for costs of appeal until December 19, 1974. The nature of the controversy was a suit for money had and received which was amended to include a stated account.

A motion to dismiss the appeal was filed by appellee on March 10, 1975, on the ground that the appeal was not perfected within six months after the date of the final judgment in the trial court. The case was submitted on briefs, on motion, and on merits in this court on March 20, 1975.

Since the Appellate Rules of Procedure have not been adopted by this court, the time and manner of appeal in this case is still governed by statute. Title 7, § 766, Code of Alabama 1940, provides:

“Any appeal taken under the provisions of this chapter from the rendition of the judgment or decree, shall be shown in the following manner: . . . (b) By giving security for the costs of the appeal to he approved by the clerk or register, or court. . . .” (Emphasis added.)

Section 788 of Title 7 provides:

“Appeals under this chapter, except in such cases as a different time is prescribed, must be taken within six months from the rendition of the judgment or decree.” (Emphasis added.)

The appeal in this case was not taken within the statutory period of six months. Therefore, this court is without jurisdiction to consider the appeal. Gray v. State, 279 Ala. 333, 185 So.2d 125 (1965); Boshell v. Phillips, 207 Ala. 628, 93 So. 576 (1922). We are bound by this statute and have no recourse other than to dismiss the appeal. Cf. Danley v. Danley, 263 Ala. 390, 82 So.2d 534 (1955).

Appeal dismissed.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.