Modlin v. Modlin

109 So. 2d 716, 268 Ala. 618, 1959 Ala. LEXIS 387

• Court: Supreme Court of Alabama
• Decided: February 19, 1959
• Docket: 4 Div. 958
• Status: Published

Opinion

SIMPSON, Justice.

Appeal from a final decree of divorce rendered by the Circuit Court of Coffee County in Equity.

The transcript was filed in this court on June 30, 1958. Supreme Court Rule 12, Title 7, Appendix (Pocket Part), Code 1940, requires the appellant to file his brief “with the clerk of this court within thirty days after the transcript of the record has been filed in this court”. The rule also provides that, upon failure to so file, “the appeal shall be dismissed or the case affirmed, as the case may be”. Provision is justly made for an extension of time within which briefs may be filed, not exceeding fifteen days, to be granted by this court or by a justice thereof for good cause shown upon written application, served upon opposing counsel.

Counsel for appellant did file a motion for an extension of time for filing brief on July 30, 1958, the date upon which appellant’s time to file brief was to expire. The Chief Justice granted the motion and extended the time for filing the brief “to and including August 14, 1958”. This allowed the full fifteen additional days permitted by the Rule. Appellant’s brief, however, was not filed with the clerk of this court within that time. Having thus failed to file brief within the required time, appellant must suffer dismissal of the appeal. By our decisions this action is imperative. Phalen v. Fort, 266 Ala. 213, 95 So.2d 401; Dwight Employees Association v. Southern, 264 Ala. 695, 85 So.2d 906; Hogan v. Farmers & Ginners Cotton Oil Co., 264 Ala. 697, 85 So.2d 906; Gamble v. Lapsley, 265 Ala. 695, 90 So.2d 926; Miller v. Wood, 265 Ala. 698, 90 So.2d 927.

Appeal dismissed.

LAWSON, STAKELY, MERRILL and COLEMAN, JJ., concur.