Hall v. Dexter Gas Company

170 So. 2d 796, 277 Ala. 360, 1964 Ala. LEXIS 538

• Court: Supreme Court of Alabama
• Decided: September 3, 1964
• Docket: 3 Div. 39
• Status: Published

Opinions

LAWSON, Justice.

This suit was brought in the Circuit Court of Montgomery ' County by Fred Hall, Jr., against Dexter Gas Company, Inc., and Dexter Service Company, Inc., to recover damages for personal injuries alleged to have been sustained by Hall as a result of the negligence of the defendants’ servants, agents or employees in filling a liquified gas tank on Hall’s premises.

After their demurrer to the complaint was overruled, the defendants pleaded the general issue in short by consent in the usual form.

At the conclusion of the evidence the trial court gave an affirmative instruction in favor of the defendant Dexter Gas Company, which that company had duly requested in writing.

The jury later returned a verdict in favor of the other defendant, Dexter Service Company. Judgment followed the verdict. The plaintiff, Hall, filed a motion for a new trial. It was denied. The plaintiff has appealed to this court.

Submission here was on a motion to dismiss the appeal and on the merits.

Motion to Dismiss Appeal

One of the grounds of the motion to dismiss takes the point that “the transcript does not contain a certificate that appellant has served appellees or their attorneys with a copy of the assignment of errors.” It is not alleged in the motion to dismiss that the assignments of error were not actually served upon counsel for movants or upon movants. The brief filed on behalf of appellant, plaintiff below, which was apparently duly served on counsel for movant, appellee, contains a copy of the assignments of error. The certificate provided for in Supreme Court Rule 1, Code 1940, Title 7, Appendix, is not jurisdictional. Edge v. Bice, 263 Ala. 273, 82 So. 2d 252; Land v. Craig, 271 Ala. 580, 126 So.2d 221. Under the circumstances of this case, we do not think the absence of the certificate should work a dismissal of the appeal. Edge v. Bice, supra; Land v. Craig, supra. Cf. Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103; Department of Industrial Relations v. Simms, 39 Ala.App. 525, 104 So.2d 782, where copies of the assignments of error were not served on appellees or their counsel. The holdings in those cases were not based on the mere absence of the certificate of service.

The other ground of the motion to dismiss takes the point that appellant’s brief does not meet the requirements of Supreme Court Rule 9, which prescribes the form and contents of briefs filed in this court by appellants. While the brief filed here on behalf of the appellant might not strictly conform to the aforementioned rule in all respects, we do not feel that the omissions from or defects in the brief warrant us in disregarding it. — Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579; City of Boaz v. Kelley, 266 Ala. 690, 99 So.2d 192; Barrett v. Hanks, 275 Ala. 383, 155 So.2d 339.

The motion to dismiss is denied.