Opinion
7 Div. 448.
October 16, 1924.
Appeal from Probate Court, De Kalb County; G. L, Malone, Judge.
J. V. Curtis and I. M. Presley, both of Fort Payne, for appellant.
Isbell Scott, of Fort Payne, for appellee.
In view of the decision, it is not necessary that briefs be here set out.
This is a proceeding on, contest as to the validity of a will. The cause was submitted in this court by the parties on June 3, 1924, on briefs, on motions, and on merits.
It appears the appellee on January 14, 1924, filed motion to strike the transcript and dismiss the appeal, and assigns these and other grounds, because there is no appeal bond as required by law, and because the transcript has not been prepared in conformity with Supreme Court rule 26.
No certificate of appeal was filed in this court before this cause was submitted on this motion as required by rule 43 of this court. When this cause was submitted on this motion and on the merits on June 3, 1924, there was no certificate of appeal in the record, there was nothing in the record to show an appeal had been taken by the appellant, there was no appeal bond in the record, and there was nothing therein to show an appeal bond had been given and approved as the statute directs, and the rules of this court require. Rules 26 and 43; §§ 2837, 2856, Code 1907.
When this cause was submitted to this court on June 4, 1924, there was no certificate by the judge of probate in the record proper, or on file as part of the record, that an appeal was taken, and the time when, from the decree in this cause. These facts so certified give this court jurisdiction of the case. Section 2837, Code 1907; rule 30, p. 1513, Code 1907; Thompson v. Lea, 28 Ala. 453; Robinson v. Murphy, 69 Ala. 547; Boshell v. Phillips, 207 Ala. 628, 93 So. 576.
It is true that on June 4, 1924, the probate judge issued a certificate which was filed in this court on June 6, 1924, stating that an appeal was taken and security for costs in the sum of $300 was given. This was filed after this cause was submitted, and was not in response to a certiorari writ from this court to complete the record, and it fails to state when the appeal was taken, and it cannot, under these circumstances, be considered as part of the record on this motion. It came too late. Authorities supra. It is also true that on June 14, 1924, the judge of probate made and certified to a copy of the appeal bond; it was filed in this court June 16, 1924; it was not in response to an order from this court to complete the record; the bond was made and approved on June 14, 1923, and the decree which it purports to appeal from was rendered as shown by the record on June 15, 1923. This certified copy of the appeal bond was not in the record proper when the cause was submitted, and cannot be considered as a part of the record on this motion. It came too late. Authorities supra.
When this cause was submitted on this motion and on the merits, there was no certificate on file of the appeal, there was no appeal bond in the record proper, and there was nothing in the record showing an appeal was taken from the decree, the time when, and the manner in which it was taken; and the motion to strike the transcript and the appeal must therefore be granted. Rules 43, 26 and 30 of this court; sections 2837 and 2856, Code 1907; and Gen. Acts 1915, p. 711.
Motion to strike the transcript and dismiss the appeal is granted.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.