Finley v. Pless

253 So. 2d 521, 287 Ala. 596, 1971 Ala. LEXIS 770

• Court: Supreme Court of Alabama
• Decided: September 9, 1971
• Docket: 7 Div. 897
• Status: Published

Opinions

LAWSON, Justice.

From a final decree of the Circuit Court of Shelby County, in Equity, rendered in a suit for specific performance of a written contract to convey land, the respondents endeavor to appeal.

We do not find any appeal bond in the record.

The record. does contain the following entry :■

“Respondents herewith deposit the sum. of Seven Hundred Fifty ($750.00) Dollars, as'security for costs, as designated by the Honorable Kenneth F. Ingram, Circuit Judge in Equity Sitting.

“TAKEN and APPROVED this 13th day of January, 1971.

Sarah Ozley

Register

Filed: January 13, 1971”

It has long been the rule that a deposit of money is not a sufficient security for costs of appeal to this court. — Gray v. State ex rel. Attorney General, 279 Ala. 333, 185 So.2d 125, and authorities cited.

In the Gray case, supra, no bond to secure costs of appeal was filed but, as in this case, a deposit of money was made in lieu of making an appeal bond. No motion to dismiss the appeal was filed by appellee. We dismissed the appeal ex mero motu.

The concluding paragraph of our opinion on application for "rehearing in the Gray case reads as follows:

“In summary, we hold (1) that no apappeal was 'taken’ in this case as that word is used in our appeal statutes, (2) that no appeal was taken within the time prescribed by law, (3) that nothing happened to transfer jurisdiction from the circuit court to this court, (4) that where this court has no jurisdiction, a purported appeal must be dismissed ex mero motu, and (5) that in such cases, there can be no application of the waiver rule nor do the remedial statutes, Tit. 7, §§ 805, 806, Code 1940, apply.” (279 Ala., 340, 185 So.2d 132.)

Our holding in the Gray case, supra, has not been overruled by this court and our research does not disclose the enactment of any law which authorizes the deposit of money in lieu of the making of a bond to secure costs of appeal to this court.

In view of the foregoing, it is ordered that the appeal be dismissed.

Appeal dismissed.

MERRILL, COLEMAN, BLOOD-WORTH and McCALL, JJ., concur. HEFLIN, C. J., and SIMPSON, HAR-WOOD and MADDOX, JJ., dissent.