Summary
In McRae v. Johnson, 845 So. 2d 784 (Ala. 2002), an attorney who had appeared in a civil action on behalf of a party who had died in November 2000 filed, ostensibly on behalf of that deceased party, a notice of appeal in January 2002 from an order vacating a judgment previously entered in that action.
Summary of this case from Billingsley v. City of GadsdenOpinion
No. 1010952.
Decided September 20, 2002.
Appeal from Barbour Circuit Court (CV-99-090).
Tommy R. Scarborough, Dothan, for appellant.
John F. Robertson, Clayton, for appellee.
Notice of this appeal was filed on January 23, 2002, by an attorney purporting to represent Charles McRae, who died in November 2000. We dismiss the appeal.
This case does not involve a situation where a purported appellant dies shortly before the deadline for filing a notice of appeal.
This "appeal" purports to be from the denial on January 10, 2002, of a postjudgment motion, challenging a judgment entered on December 11, 2001, which, among other things, set aside a judgment entered on November 4, 1999, "quieting title" in Charles McRae to certain real estate in Barbour County. The attorney who filed the notice of appeal in this case represented McRae in that original action. Throughout these proceedings, no suggestion of death has been filed and no substitution of parties has been made. See Ala. R. Civ. App. 25(a); Ala.R.App.P. 43.
"Rule 43 applies to substitution when the death of a party occursduring the pendency of an appeal." McMillan, Ltd. v. Warrior Drilling Eng'g Co., 512 So.2d 14, 21 (Ala. 1987).
It is a general rule that "`an attorney's authority to act on behalf of a client ceases on the death of that client.'" Estate of Jones v. State Farm Mut. Auto. Ins. Co., 829 So.2d 170, 171 (Ala.Civ.App. 2002) (quotingBrown v. Wheeler, 437 So.2d 521, 523 (Ala. 1983), overruled on other grounds, Hayes v. Brookwood Hosp., 572 So.2d 1251 (Ala. 1990)). See alsoKissic v. Liberty Nat'l Life Ins. Co., 641 So.2d 250, 251 (Ala. 1994);McDonald v. Womack, 214 Ala. 309, 107 So. 812, (1926).
The fact that the person purporting to file the notice of appeal is deceased is "not just `a mere irregularity, but a complete and radical defect.'" Brantley v. Fallston Gen. Hosp., Inc., 333 Md. 507, 511, 636 A.2d 444, 446 (1994) (quoting Owings v. Owings, 3 G. J. 1, 4 (Md. 1830)). Such a notice of appeal fails to invoke the appellate jurisdiction of this Court. See McMillan, Ltd. v. Warrior Drilling Eng'g Co., 512 So.2d 14, 20-21 (Ala. 1987). Thus, where it is undisputed that the appellant was deceased when the notice of appeal was filed, this Court will dismiss the appeal ex mero motu. Because the notice of appeal purportedly filed by Charles McRae was a nullity, we dismiss the appeal.
APPEAL DISMISSED.
Moore, C.J., and Houston, Lyons, and Johnstone, JJ., concur.