Opinion
8 Div. 834.
June 14, 1921. On Rehearing, November 29, 1921.
Appeal from Circuit Court, Marshall County; W.W. Harralson, Judge.
Action by J.T. Hamrick against R.E. Nail, with claim to the property levied on by M. L. Blumenfeld Co. Judgement for plaintiff, and claimant appeals. Appeal dismissed.
Street Bradford, of Guntersville, for appellant.
Nothing short of a confession of judgment is a release of error, and the appellant did no more than make a motion of the sort contemplated by section 2891, Code 1907, 11 Ala. 1023; 187 N.Y. 90, 79 N.E. 836, 12 L.R.A. (N.S.) 707; section 2892, Code 1907; 3 C. J. 603, 672. The time of an appeal begins from the entrance of an appropriate judgment, and this judgment was not rendered until January, 1921. 3 C. J. 1050, 1058, 1059. The judgment of January, 1920, was wholly inappropriate, and would probably have not supported an appeal. 76 Ala. 308; 76 Ala. 325; 101 Ala. 186, 13 So. 43, 46 Am. St. Rep. 117; 129 Ala. 523, 30 So. 623; 129 Ala. 410, 30 So. 584; sections 6039 and 6042, Code 1907; 3 C. J. 597.
E.O. McCord Sons, of Gadsden, for appellee.
The appeal was taken too late and should be dismissed. 161 Ala. 536, 50 So. 86.
It appears from the certificate of appeal in this case that this cause was tried and determined in the court below on the 14th day of January, 1920, and that this appeal was not taken until the 28th day of January, 1921, more than six months from the date of the trial of the cause and rendition of the judgment. The cause is here submitted upon the motion to dismiss the appeal on the grounds that it comes too late. This is the only question presented, and under the authority of the statute (chapter 53 of the Code of 1907, as amended by Acts 1915, p. 711) the motion must be granted, and the appeal dismissed.
Appeal dismissed.
On Rehearing.
This cause is not before us upon its merits, having been submitted only upon motion, properly made to dismiss the appeal. It appears to us that to grant the application for rehearing and set aside the order of dismissal would be a useless thing; for, as stated in the memorandum opinion, if the appeal is taken from the original judgment of January 14, 1920, it comes too late and cannot be entertained. Further, if the appeal is from the judgment of January 21, 1921, it would not lie, as it affirmatively appears this judgment was rendered by the court upon motion of appellant, who therefore cannot be heard for the reason that the judgment complained of was rendered upon the motion of and at request of defendant. Gunter v. Hinson, 161 Ala. 536, 50 So. 86.
As to the judgment of January 21, 1921, there is no bill of exceptions.
Application overruled.