Holman v. Baker

169 So. 2d 429, 277 Ala. 310, 1964 Ala. LEXIS 524

• Court: Supreme Court of Alabama
• Decided: September 3, 1964
• Docket: 4 Div. 155
• Status: Published

Opinions

PER CURIAM.

Defendant in the trial court here appeals, from a judgment of the Circuit Court of Dale County granting plaintiff’s motion to> vacate and set aside the verdict of the-jury in a personal injury suit, and also to-vacate and set aside the judgment rendered and entered in the proceeding.

On January 18, 1963, prior to the submission here of this cause on March 29, 1963,. appellee filed his motion to dismiss this appeal, assigning grounds as follows:

1. It affirmatively appears this appeal is. on the record proper and the transcript of the record was not filed within the time provided by law.

2. It affirmatively appears that the-transcript was not filed in this cause until January 7, 1963, and that within sixty days, from the date the appeal was taken, the trial court entered an order extending the time for filing the transcript of the record “to and including January 6,. 1963.”

On the Motion to Dismiss

It appears from the transcript here on 'file that appellee’s motion to . vacate the verdict and judgment in favor of defendant (appellant here) was seasonably filed with the circuit clerk on June IS, 1962, and presented to the trial judge the following day. The trial judge, on such presentation, ■ entered a written order continuing the hearing on the motion to June 29, 1962. On June 25, 1962, and again on June 29, 1962, 'by like order, he continued the motion to July 9, 1962. No further written order was made concerning the motion until July .28, 1962, when the trial judge entered an 'order in writing as follows:

“The motion of the Plaintiff in the above styled cause to set aside the ver•dict and judgment and to grant a new trial, having been heard by the Court -on the 9th day of July, 1962, and taken under consideration for decree [sic] ; and the Court being of the opinion that the motion should be continued for further consideration by the Court, it is therefore,

“CONSIDERED, ORDERED AND ADJUDGED by the Court that the motion for a new trial be and the same is hereby continued for further consideration by the Court until the 28th day of .September, 1962.

“Ordered this 28th day of July, 1962.”

On September 12, 1962, the trial court -entered a judgment granting the motion .and vacating the verdict of the jury and the judgment thereon.

It further appears from the record that -on October 9, 1962, defendant gave notice of •appeal from the judgment of September 12, 1962, granting the motion, and on the same ■date filed security for costs of appeal.

. On December 7, 1962, the circuit clerk filed with the trial court his petition stating that due to pressure of work in his office in connection with the trial of cases, preparation of court calendars, and other duties necessary for an ensuing session of court, he could not complete the appeal transcript by December 9, 1962, and requested an extension of time.

The trial judge on December 7, 1962, acting on said petition, extended the time for filing the transcript to and including January 6, 1963, which this court judicially knows was on Sunday. The transcript was filed with the clerk of this court on Monday, January 7, 1963.

One of the contentions of appellee is that the trial judge had no authority to extend the time for the reason that the appeal here is on the record proper, which does not contain any portion of the trial proceedings. He says:

“ * * * The initial question is, therefore, whether under Rule 37 [Supreme Court Rule 37, Revised Rules effective June 1, 1955, and amended February 17, 1956] and Title 7, Sec. 770, the trial court has any power to extend the 60 day period fixed by the Rule as the time within which the record is to be filed.

“We think it is obvious that the scheme of Rule 37 envisions an extension of time only where the ‘record’ is an entire record. The term ‘transcript of record’ must have reference to a complete transcript of the proceedings below. There is no rational basis for allowing more than 60 days to prepare the record proper.”

Appellee cites the cases of Duke v. State, 264 Ala. 624, 89 So.2d 102, and Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891, and supporting his contention above noted.

We have examined both cases. In the Duke case, an extension of time by the trial judge was not involved. The author of the opinion specifically stated that no extensions of time for filing the transcript of record were requested in the court below.

In the Calvert case, there was an appeal from an adverse judgment of the Circuit Court of Mobile County to recover past-due installments of alimony awarded by decree of the Superior Court of Fulton County, Georgia. There this court observed :

“We here observe that we find nothing in the record to indicate that any request was made for extension of time for filing the transcript of the record. Nor do we find anything indicating that an attempt was made to procure a transcript of the evidence in the trial court as provided by those acts codified as §§ 827(1) to 827(6), Tit. 7, Code 1940, Pocket Part.” (265 Ala. 530, 92 So.2d 892)

We quote the pertinent part of Rule 37, supra, as follows:

“In all cases, either civil or criminal, the transcript shall be filed with the clerk of this court within sixty days after the signing or establishing of the bill of exceptions or the expiration of the time for establishing the same; except in equity cases the transcript shall be filed within sixty days of the taking of the appeal. Where bills of exceptions have been abolished, the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below. The trial judge may extend the time for filing transcript of the record in this court for good cause shown for not to exceed thirty days * * * (Emphasis supplied.)

We think the trial court had authority under this rule, for proper cause as here shown, to extend the time for filing the transcript of the record proper. The legislature probably envisioned sickness on the part of the clerk or other cause which might create a necessity for an extension. We do not think the authority of the trial judge to extend is circumscribed by a necessity for all the trial proceedings, including a transcript of the evidence, to be incorporated in the transcript or an attempt to procure the same.

Nor do we think there is any merit in appellee’s motion to strike the transcript and dismiss the appeal because the transcript was not filed until January 7, 1963 — one day after the time fixed by the trial court for filing. As we have already observed, January 6, 1963, was on Sunday. Supreme Court Rule 46, Revised Rules, effective June 1, 1955, and amended February 17, 1956, gave an extra day (the last day being on Sunday) to file the transcript on this appeal.