Tuscaloosa Motor Co. v. Cockrell

Alabama Court of Appeals

Tuscaloosa Motor Co. v. Cockrell

132 So. 2d 736, 41 Ala. App. 369, 1957 Ala. App. LEXIS 42

CourtAlabama Court of Appeals

DecidedApril 9, 1957

Docket6 Div. 281

StatusPublished

This text of 132 So. 2d 736 (Tuscaloosa Motor Co. v. Cockrell) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tuscaloosa Motor Co. v. Cockrell, 132 So. 2d 736, 41 Ala. App. 369, 1957 Ala. App. LEXIS 42 (Ala. Ct. App. 1957).

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Opinions

PRICE, Judge.

This cause was submitted upon a motion to strike the assignments of error and dismiss the appeal, and upon the merits.

The motion is made upon the grounds that: (1) The assignments of error filed by appellant, bound with the transcript filed with the clerk, do not bear the certificate that a copy of same has been served upon appellee or his counsel, and (2) That no copy of such assignments were served upon appellee or his counsel, as required by Supreme Court Rule 1, Code 1940, Tit. 7 Appendix.

Counsel for appellant attached to his objection to the motion a certificate of the Clerk of the Circuit Court of Tuscaloosa County to the effect that on the 9th day of November, 1955, counsel for appellant furnished the said circuit clerk the assignments of error to be bound with the transcript and that a copy of the complete transcript, including the assignments of error, was delivered by him to appellee’s counsel on or about November 14, 1955.

Counsel -for appellant also filed answer to said motion setting up therein that his failure to certify that a copy of said assignments of error had been served on the attorneys for appellee was due to an oversight; that he filed brief for appellant in [371]*371said cause on appeal on the 14 day of December, 1955, serving a copy of same on attorneys for appellee, as shown by certificate on said brief; that appellee’s counsel filed reply brief on the 30th day of December, 1955, in which 'brief he joined issue on each error assigned, as shown by page 17 of appellee’s brief; that appellee’s counsel had before them a complete copy of the assignments of error, bound with the transcript, in time for them to prepare a reply brief to appellant’s brief, and that appellee is not shown to have been prejudiced by the failure to comply with Supreme Court Rule 1.

We are of the opinion that the granting or overruling of a motion to strike the assignments ■ of error for a noncompliante with Rule 1 is discretionary with the court. It does not appear that the appellee was prejudiced by the failure of counsel for appellant to certify that a copy of the assignments had been served. The motion to dismiss the appeal is overruled.

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PRICE, Judge.

This cause was submitted upon a motion to strike the assignments of error and dismiss the appeal, and upon the merits.

The motion is made upon the grounds that: (1) The assignments of error filed by appellant, bound with the transcript filed with the clerk, do not bear the certificate that a copy of same has been served upon appellee or his counsel, and (2) That no copy of such assignments were served upon appellee or his counsel, as required by Supreme Court Rule 1, Code 1940, Tit. 7 Appendix.

Counsel for appellant attached to his objection to the motion a certificate of the Clerk of the Circuit Court of Tuscaloosa County to the effect that on the 9th day of November, 1955, counsel for appellant furnished the said circuit clerk the assignments of error to be bound with the transcript and that a copy of the complete transcript, including the assignments of error, was delivered by him to appellee’s counsel on or about November 14, 1955.

Counsel -for appellant also filed answer to said motion setting up therein that his failure to certify that a copy of said assignments of error had been served on the attorneys for appellee was due to an oversight; that he filed brief for appellant in [371]*371said cause on appeal on the 14 day of December, 1955, serving a copy of same on attorneys for appellee, as shown by certificate on said brief; that appellee’s counsel filed reply brief on the 30th day of December, 1955, in which 'brief he joined issue on each error assigned, as shown by page 17 of appellee’s brief; that appellee’s counsel had before them a complete copy of the assignments of error, bound with the transcript, in time for them to prepare a reply brief to appellant’s brief, and that appellee is not shown to have been prejudiced by the failure to comply with Supreme Court Rule 1.

We are of the opinion that the granting or overruling of a motion to strike the assignments ■ of error for a noncompliante with Rule 1 is discretionary with the court. It does not appear that the appellee was prejudiced by the failure of counsel for appellant to certify that a copy of the assignments had been served. The motion to dismiss the appeal is overruled.

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132 So. 2d 736, 41 Ala. App. 369, 1957 Ala. App. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuscaloosa-motor-co-v-cockrell-alactapp-1957.

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