Snow v. City of Fairfield

Supreme Court of Alabama

Snow v. City of Fairfield

74 So. 2d 485, 261 Ala. 313, 1954 Ala. LEXIS 468

CourtSupreme Court of Alabama

DecidedAugust 30, 1954

Docket6 Div. 621

StatusPublished

Cited by1 cases

This text of 74 So. 2d 485 (Snow v. City of Fairfield) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Snow v. City of Fairfield, 74 So. 2d 485, 261 Ala. 313, 1954 Ala. LEXIS 468 (Ala. 1954).

Pincite

Opinion

SIMPSON, Justice.

This is an appeal from a final decree rendered on June 23, 1953. The appeal was taken in July, 1953, but no transcript was filed until March 17, 1954. Appellee filed a motion to dismiss the appeal on March 6, 1954 because of the belated filing of the transcript. The case was submitted on this motion on March 25, 1954, and appellant made no response.

Under Section 769, Title 7, Code 1940, the transcript should have been filed sixty days after the taking of the appeal. Section 770, Title 7, Code 1940, provides for a motion to dismiss when the appellant fails to comply with Section 769. But Supreme Court Rule 41, Code 1940, Tit. 7 Appendix, provides that the transcript must be filed with the clerk of the court not later than the first day of the first week of the term during which the case is subject to call in this court. In the instant case, that was November 23, 1953. Under both Rule 41 and Section 770, dismissal for failure to file [314]*314the transcript in time is within the discretion of the court; but when, as here, the appellant makes no showing of good cause for failing to file the transcript on time, the court has no choice and must grant the motion to dismiss. State v. Barton, 257 Ala. 230, 58 So.2d 450.

So ordered.

GOODWYN, MERRILL and CLAYTON, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

SIMPSON, Justice.

This is an appeal from a final decree rendered on June 23, 1953. The appeal was taken in July, 1953, but no transcript was filed until March 17, 1954. Appellee filed a motion to dismiss the appeal on March 6, 1954 because of the belated filing of the transcript. The case was submitted on this motion on March 25, 1954, and appellant made no response.

Under Section 769, Title 7, Code 1940, the transcript should have been filed sixty days after the taking of the appeal. Section 770, Title 7, Code 1940, provides for a motion to dismiss when the appellant fails to comply with Section 769. But Supreme Court Rule 41, Code 1940, Tit. 7 Appendix, provides that the transcript must be filed with the clerk of the court not later than the first day of the first week of the term during which the case is subject to call in this court. In the instant case, that was November 23, 1953. Under both Rule 41 and Section 770, dismissal for failure to file [314]*314the transcript in time is within the discretion of the court; but when, as here, the appellant makes no showing of good cause for failing to file the transcript on time, the court has no choice and must grant the motion to dismiss. State v. Barton, 257 Ala. 230, 58 So.2d 450.

So ordered.

GOODWYN, MERRILL and CLAYTON, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

74 So. 2d 485, 261 Ala. 313, 1954 Ala. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snow-v-city-of-fairfield-ala-1954.

Opinion

Related

Cite This Page — Counsel Stack