Terry v. Gresham

48 So. 2d 437, 254 Ala. 349

• Court: Supreme Court of Alabama
• Decided: October 26, 1950
• Docket: 8 Div. 546
• Status: Published

Opinions

FOSTER, Justice.

This cause was submitted on several motions of appellee. Two of them are to the same effect 'and in substance ate that the transcript of the evidence, objections, oral motions and rulings of the court certified by the court reporter, and extending from page 16 to 66, be stricken as a part of the record of the proceedings, for that it is not a bill -of exceptions under sections 783 and 821, Title 7, Code, and because the Act of 1943, page 423, abolishing bills of exceptions in certain courts, section 827(1), Title 7, Code (Pocket Part); Supreme Court Rule 48, Code 1940, Tit. 7 Appendix, has no application to trials in the probate court.

We think the motion is well taken. The certified transcript is not in proper form or content to be a bill of exceptions. The Act of 1943 and Rule 48, supra, abolishing bills of exceptions only apply to circuit courts and courts of like jurisdiction and to all other courts of record having a full time court reporter and from which appeals lie directly to the Court of Appeals or the Supreme Court. We have held that this applies to all circuit -courts and courts of like jurisdiction, though they do not have a full time court reporter. Chaney v. City of Birmingham, 246 Ala. 147, 21 So. 2d 263. The plain language is that it does not apply to other -courts except those of record which have a full time court reporter and an appeal lies from its judgments to the Supreme Court.

The probate court is a court of record, 21 C.J.S., Courts, § 310, p. 562; section 149, Constitution of 1901, and an appeal lies directly to this 'Court, section 776, Title 7, Code, but it does not have a full time court reporter. Sections 261 et seq., Title 13, Code.

It is therefore apparent that in that court bills of exceptions have not been abolished and the transcript certified as authorized by the Act of 1943, supra, section 827(1), Title 7, supra, has not been substituted in the probate court for a bill of exceptions. The result is that the motion to strike such transcript should be and it is sustained.

Appellee also moves to dismiss the appeal because the appeal bond is not conditioned “faithfully to discharge his duties as such executor or -administrator” until the appeal is decided. The bond is -conditioned to “prosecute the said appeal to effect, and satisfy such decree as may be rendered against him in said cause by the Supreme Court.”

The appeal is from a decree of the probate -court, by which the administration of the estate of the deceased Mollie Terry Glenn, together with the letters of administration theretofore issued to George Terry on said estate, were thereby rescinded, revoked and annulled. The appeal is claimed under authority of section 776(3), Title 7, Code, from a judgment or order removing an executor or administrator, to be taken within five days after such judgment or order. The order of removal was dated January 10, 1950. The appeal bond was approved January 15, 1950. It plainly did not comply with section 779, Title 7, Code, though good as to security for costs.

Appellant’s counsel in his oral argument opposing this motion requested that in event we find this -appeal not to -comply with section 779, supra, we allow him an opportunity to file a bond conditioned as required by that statute.

In the case of Murphy v. Freeman, 220 Ala. 634, 127 So. 199, such an appeal was taken without the bond being conditioned as required by section 6118, Code of 1923, section 779, Title 7, Code. The cause was submitted in this 'Court without -a motion to dismiss the appeal. Appellees made such a motion after the submission of the case, and this Court held that the security for -costs conferred jurisdiction to the court and that the motion came too late. There was no occasion therefore to make use of section 806, Title 7, Code. That statute provides that no appeal shall be dismissed for want of sufficient -appeal bond if the appellant will give sufficient bond. We ■assume that this means to apply only when such sufficient bond is either given in the time allowed for taking the appeal or an effort to appeal has been made in that time, which is sufficient to -confer jurisdiction on this Court.

When jurisdiction has been thus conferred by executing bond and having it approved, conditioned to pay the costs of such appeal, section 782, Title 7, Code, this Court should allow it to be -amended as directed by section 806, supra, even though after the period in which the appeal may be taken. Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803; Hall v. Proctor, 239 Ala. 211, 194 So. 675; Williams v. Prather, 236 Ala. 652, 184 So. 473.

It is therefore ordered that appellant be allowed six days from this date in which to have approved by the clerk of this Court a bond with two good and sufficient sureties in the penal sum of $2500, payable and conditioned as required by section 779, supra, or approved by the probate judge of Lauderdale County and certified by him to this Court in said period. In event of a failure to comply with this order, as herein directed, this appeal shall stand dismissed.

Motion to expunge is granted. Motion to dismiss the appeal is overruled conditionally.

LAWSON, SIMPSON and STAKELY, JJ., concur.