Patton v. Colbert County

92 So. 2d 691, 265 Ala. 682, 1957 Ala. LEXIS 330

• Court: Supreme Court of Alabama
• Decided: March 21, 1957
• Docket: 8 Div. 797
• Status: Published

Opinion

LIVINGSTON, Chief Justice.

This is an appeal from a judgment of the Circuit Court of Colbert County, Alabama, awarding appellants $275 for property condemned for highway construction purposes.

The appellee moved to affirm the judgment appealed from in this cause for want of legal assignment of errors. The appellants moved to set aside submission of the cause and be allowed to bind the assignment of errors within the transcript. The appellants further moved that they be allowed to assign additional errors.

The assignment of errors must be written on the transcript before the errors will be considered by this court. Supreme Court Rule 1, Code 1940, Tit. 7 Appendix. An assignment of errors, made on a separate sheet of paper, which is attached to a page of the transcript with gummed tape, subject to easy detachment and removal, does not comply with this court rule, and in such case there is nothing before this court to be considered. Gates Lumber Co. v. Givins, 181 Ala. 670, 61 So. 330; Pugh v. Hardman, 151 Ala. 248, 44 So. 389; Hunter v. Louisville & N. R. Co., 150 Ala. 594, 43 So. 802; Mitchell v. Marshall County Livestock Market, 32 Ala.App. 42, 21 So.2d 446; Skinner v. Jackson, 28 Ala.App. 227, 182 So. 92, certiorari denied 236 Ala. 310, 182 So. 93; Moon v. J. E. Butler & Co., 9 Ala.App. 438, 62 So. 1019.

Where, as in the instant case, a motion has been made by the appellee for the affirmance of the judgment appealed from for want of assignment of errors on the record, this court will not, without good cause shown, set aside the submission of the cause on motion of the appellant to allow the appellant to bind the assignment of errors within the transcript. Hunter v. Louisville & N. R. Co., supra; Garrett v. Oddo, 261 Ala. 172, 73 So.2d 761; Skinner v. Jackson, supra. We feel impelled to hold in the instant case that no sufficient cause is shown for setting aside the submission and allowing appellants to assign errors.

The appellants’ motion to be allowed to assign additional errors as provided by Rule 2 of the Revised Rules of the Supreme Court is without merit. Rule 2 permits additional assignments to be made only, before submission, and this cause had been submitted prior to said motion. Moreover, this rule was not designed to permit an appellant to make an original assignment where none had been legally made before the order of submission, but merely to make an additional assignment to those errors already assigned.

The appellee’s motion is granted and the cause affirmed for want of assignment of errors.

Affirmed.

SIMPSON, GOODWYN and COLEMAN, JJ., concur.