Gray v. State Ex Rel. Attorney General

185 So. 2d 125, 279 Ala. 333, 1965 Ala. LEXIS 818

• Court: Supreme Court of Alabama
• Decided: June 24, 1965
• Docket: 7 Div. 630
• Status: Published

Opinions

COLEMAN, Justice.

From a decree making permanent a preliminary injunction, respondents endeavor to appeal.

The decree was rendered July 1, 1963:, Motions for rehearing were denied, September 5, 1963. The .cause was argued orally in this court and submitted May 26, 1964. ■ ...

We do not find any appeal bond in the record.

The certificate of appeal recites:

The certificate does not 'state the name of any surety on any appeal bond. Supreme Court Rule 38.

It has long been the rule that a deposit of money is not a sufficient security for costs of appeal to this court. § 792, Title 7, Code 1940; Butler v. Foster, 14 Ala. 323; King & Owen v. McCann, 25 Ala. 471; Griswold v. Thornton, 129 Ala. 454, 30 So. 717; Harris v. Barber, 237 Ala. 138, 186 So. 160; American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12.

“The majority of the courts that have considered the question have decided that a deposit of money cannot be given in lieu of an undertaking or bond on appeal where the pertinent statute or. .rule, does not specifically authorize such- a deposit.” (65 A.L.R.2d 1137)

S. & S. Builders, Inc. v. Eagle Truck Transport, Inc., 50 Del. 346, 130 A.2d 558; Gordon v. Camp, 2 Fla. 23; Marks v. Waiahole Water Co., 36 Haw. 188; Beckwith v. Kansas City &,Olathe Railroad Co., 28 Kan. 484; Alvord & Son v. Mallory, 10 Ky.L.R. 80; State ex rel. Maxwell v. Sevier, (Mo.App.), 179 S.W.2d 492; Naum v. Naum, 101 N.H. 367, 143 A.2d 424, 65 A.L.R.2d 1130; Sommers v. De Ran, 53 Ohio App. 87, 4 N.E.2d 267; Commonwealth v. Sitler, 261 Pa. 261, 104 A. 604; Smith v. Coffin, 9 S.D. 502, 70 N.W. 636; Ringgold v. Graham, Tex.Com.App., 13 S.W.2d 355; Hervey v. Forse, Tex.Civ.App., 253 S.W.2d 701; Brooks v. Epperson, 164 Va. 37, 178 S.E. 787; United States v. Faw, 1 Cranch C.C. 486.

The right to appeal is purely statutory. The provisions of the statute are mandatory and free of ambiguity.

“The appellant not having filed an , , abbreviated or defective bond or one of any kind so as to invoke the juris-, diction of this court, we are impelled ex mero mot'u to’dismiss this appeal for want of jurisdiction. It cannot be waived. * * * ” American Federation of Musicians v. Moss, 277 Ala. 169, 168 So.2d 12, 13.

It is ordered that the appeal be dismissed.

Appeal dismissed.

LAWSON, GOODWYN, MERRILL and HARWOOD, JJ., concur.