Deaton v. Deaton Truck Lines

Full title: DEATON et al. v. DEATON TRUCK LINES, Inc., et al

Court: Supreme Court of Alabama

Date published: Dec 18, 1941

4 So. 2d 895 (Ala. 1941)

4 So. 2d 895

Opinion

6 Div. 871.

October 30, 1941. Rehearing Denied December 18, 1941.

Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.

J. P. Mudd, of Birmingham, for appellants.

D. H. Markstein, Jr., of Birmingham, for appellees.

BROWN, Justice.

The order granting the injunction was entered on the 27th of March, 1941, and the appeal therefrom was taken on April 1, 1941. The appeal was returnable on April 17, 1941, and the case, if the record had been filed, was subject to submission, the court then being in session. Code of 1923, § 8307, Code of 1940, Tit. 7, § 1057.

The regular call of the Sixth Division began on April 21, 1941, and cases in that division were subject to call during the two weeks following that date.

Motion was filed by appellee to dismiss the appeal on June 5, 1941, on grounds, among others: "The transcript in this cause was not filed in the office of the Clerk of this Court within the time fixed by law." The transcript was not filed until June 18, 1941. The call of cases from the several divisions was concluded during the week beginning May 26, 1941.

The appellants offer no excuse for delay in filing the transcript.

The provisions of § 769, Tit. 7, Code of 1940; § 6107 of the Code of 1923, allowing sixty days from the day of taking an appeal in equity cases, generally, are not applicable to appeals from orders granting or refusing injunctions. The statute giving the right of appeal provides: "From the order granting or refusing the writ of injunction, an appeal will lie to the supreme court within ten days, to be heard as preferred cases in that court, on the first Thursday the court is in session after the expiration of the ten days, or as soon thereafter as may be." Code of 1923, § 8307.

The appellee, in the absence of good excuse for the delay, was entitled to have the cause submitted during the term to which it was taken, and was also entitled to have the case decided during that term.

The motion to dismiss the appeal is due to be granted. It is so ordered.

Appeal dismissed.

GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.