M. L. Blumenfeld & Co. v. Hamrick

91 So. 914, 18 Ala. App. 317, 1921 Ala. App. LEXIS 256

Opinions

It appears from the certificate of appeal in this case that this cause was tried and determined in the court below on the 14th day of January, 1920, and that this appeal was not taken until the 28th day of January, 1921, more than six months from the date of the trial of the cause and rendition of the judgment. The cause is here submitted upon the motion to dismiss the appeal on the grounds that it comes too late. This is the only question presented, and under the authority of the statute (chapter 53 of the Code of 1907, as amended by Acts 1915, p. 711) the motion must be granted, and the appeal dismissed.

Appeal dismissed.

On Rehearing. This cause is not before us upon its merits, having been submitted only upon motion, properly made to dismiss the appeal. It appears to us that to grant the application for rehearing and set aside the order of dismissal would be a useless thing; for, as stated in the memorandum opinion, if the appeal is taken from the original judgment of January 14, 1920, it comes too late and cannot be entertained. Further, if the appeal is from the judgment of January 21, 1921, it would not lie, as it affirmatively appears this judgment was rendered by the court upon motion of appellant, who therefore cannot be heard for the reason that the judgment complained of was rendered upon the motion of and at request of defendant. Gunter v. Hinson, 161 Ala. 536, 50 So. 86.

As to the judgment of January 21, 1921, there is no bill of exceptions.

Application overruled.