State v. Patton

60 So. 2d 383, 36 Ala. App. 539, 1952 Ala. App. LEXIS 394, 1952 Ala. Civ. App. LEXIS 142

Opinion

PRICE, Judge.

The provisions of Title 15, Section 369, Code of 1940, not having been complied with, petitioner, appellee, has filed a motion to dismiss the appeal. The said motion (omitting the formal parts) is:

“Comes now the Appellee in the above styled cause and moves the Court to dismiss and strike this Appeal from the decree rendered in the Circuit Court of Etowah County, Alabama and for grounds of said motion assigns separately and severally the following:

“1. That said Appeal was not perfected by filing the transcript and certificate of appeal with this court together with a statement of the evidence and judge’s ruling thereon, certified to be correct by the judge hearing the petition as required by Title 15, Section 369, Code of Alabama, 1940.

“2. That the record shows on its face that the judgment of the Circuit Court was rendered on the 31st day of May, 1951, and that the transcript and certificate of appeal was not forwarded to this Court by the Clerk until the 5th day of July, 1951, which is not within the statutory period of Thirty (30) days.

“3. That the transcript of record and certificate of appeal to this Court, together with a statement of the evidence and judge’s ruling thereon is not certified to be correct by the judge-' hearing the petition.

“4. That the Clerk of this Court ■was without authority by law to docket this cause without the judge’s certificate as required by Title 15, Section 369, Code of Alabama 1940.”

The appellee is correct in his contention. The record discloses that the provisions of the statute have not been complied with.

The following authorities support appellee’s insistence. Callahan v. State, 33 Ala.App. 362, 33 So.2d 743, and authorities cited; Thomas v. State, 34 Ala.App. 160, 37 So.2d 245.

It follows that the appeal must be dismissed, and it is so ordered.

Appeal dismissed.