Guarantee Trust Life Insurance v. Overton

280 So. 2d 140, 50 Ala. App. 435, 1973 Ala. Civ. App. LEXIS 444

• Court: Court of Civil Appeals of Alabama
• Decided: June 20, 1973
• Docket: Civ. 136
• Status: Published

Opinions

BRADLEY, Judge.

This case was submitted on appellee’s motion to dismiss the appeal and on the merits on April 26, 1973.

ON THE MOTION

The motion to dismiss the appeal cites as the only ground therefor that the record does not show service of the citation of appeal as required by law.

On April 23, 1973 the Supreme Court of Alabama adopted a new rule, Rule 52 of the Alabama Supreme Court Rules. Rule 52 became effective on the date of adoption and reads in pertinent part as follows:

“No appeal shall be dismissed, either on motion of a party or ex mero motu, where the transcript of the record on appeal . . .(b) fails to show that the adverse party was served with notice of the appeal under Tit. 7, § 801, but the adverse party has filed some document in this court showing that he had timely knowledge of the appeal, . . . unless the failure, defect or insufficiency . has been called to the attention of this court prior to submission by written motion, a copy of which motion shall be furnished counsel for the adverse party and the failure, defect or insufficiency remains uncorrected at time of submission. . . . ”

On April 24, 1973 appellant filed in this court a supplemental copy of the original transcript showing service of notice of appeal on appellee. We therefore deem Title 7, Section 801, Code of Alabama 1940, as Recompiled 1958 to have been complied with. The motion to dismiss the appeal is therefore denied.