Colbert County v. Tennessee Valley Bank

The attention of the court is called to the fact of the alleged lack of jurisdiction which was not fully considered.

The judgment was rendered November 20, 1931, the notice of appeal duly given within six months therefrom (sections 6101, 6127, Code), and on April 23, 1932, the appeal bond was signed, "Colbert County, Alabama, a Municipal Corporation, By R. T. Simpson, Jr., As Solicitor of the Eleventh Judicial Circuit, Plaintiff's Solicitor of Record," and was indorsed, "Taken and approved, this April 23rd, 1932, W. T. Moody, Clerk." This bond did not contain a surety as required by sections 6101, 6131, Code. That bond was amended here May 26, 1932.

It is decided that the taking of an appeal within the time is jurisdictional and cannot be waived by the parties. Meyers v. Martinez, 162 Ala. 562, 50 So. 351; Boshell v. Phillips,207 Ala. 628, 93 So. 576; Lewis v. Martin, 210 Ala. 401,98 So. 635; Lowry v. Hill, 211 Ala. 645, 101 So. 586; City of Troy v. Murphree, 214 Ala. 118, 107 So. 83; Thompson v. State ex rel.,216 Ala. 348, 113 So. 296.

In Thompson v. Menefee, 218 Ala. 332, 118. So. 587, is the announcement, on authorities collected, that the appeal was counted from the date or time sufficient surety for costs was lodged with the proper officer. Bedwell v. Dean, 221 Ala. 224,128 So. 389; Liverpool London Globe Ins. Co. v. Lowe,208 Ala. 12, 93 So. 765; Jacobs v. Goodwater Graphite Company,205 Ala. 112, 87 So. 363; Kimbrell v. Rogers, 90 Ala. 339,7 So. 241; within the time allowed for appeal, Davis v. McCampbell,37 Ala. 609; Walker v. Hunter, 34 Ala. 204; Williams v. McConico, G'd'n, etc., 27 Ala. 572; King Owen v. McCann,25 Ala. 471.

It is established that when a county appeals in its corporate and independent capacity, it must comply with the statute as to sureties. State v. Page, 19 Ala. App. 303, 97 So. 244, and authorities, a process in the collection of a tax. In State for Use of Fayette County v. Earnest, 123 Ala. 631, 26 So. 948, the bill was filed by the state for the benefit of the county to enforce a judgment upon a forfeited recognizance, and was held to fall within the statute in question as to the perfection of an appeal. Copeland v. Jefferson County, 192 Ala. 12,68 So. 285, was for the *Page 637 recovery of certain fees for services rendered by appellant as clerk of the criminal court.

The instant proceeding is not within the exemption of section 5644 of the Code, applying to actions by the state.

The county of Colbert was obligated to pay the costs in the event of the loss of suit, either with or without executing bond. However, the statute (section 6131 of the Code) required that additional security be given in the perfection of the appeal. The statute is peremptory in a case where it has application. King Owen v. McCann, supra; Davis v. McCampbell, supra; Thompson v. Lea, 28 Ala. 453. In Griswold v. Thornton,129 Ala. 454, 30 So. 717, where the bond signed only by the parties before the court, held insufficient.

Was the bond filed here such an undertaking held so radically defective in form or substance as to be void under our statute? 3 C. J. 1193. Did it amount to the filing of no bond, or was it such as was cured by the filing of a new bond or undertaking after the expiration of the six months' time of appeal had expired? Davis v. McCampbell, 37 Ala. 609, 612. We think the effect of the alleged bond filed and approved of date of April 23, 1932, was cured by the new bond on May 26, 1932, and hold that the defect was cured by the new bond taken and approved by the clerk of this court of date of May 26, 1932.

We may say further of our decisions that sections 6144 and 6145 of the Code were not statutes when the decision in Davis v. McCampbell, supra, was rendered (3 C. J. 1265); in Strain v. Irwin, 199 Ala. 592, 75 So. 151, the judgment was misdescribed as to the date of its rendition; in Sloss-Sheffield Steel Iron Co. v. Terry, 191 Ala. 476, 67 So. 678, the date of the bond was omitted; in McCarter v. City of Florence, 213 Ala. 367,104 So. 806, the bond did not contain the proper condition and was payable to improper officers, and was permitted to be amended under the new section, section 6145 of the Code; Ex parte Canada Life Assur. Co., 217 Ala. 210, 115 So. 244, adverts with approval to the statute and observes that no appeal will be dismissed for want of a "sufficient appeal bond or bond for the costs of the appeal"; and Birmingham Trust Savings Co. v. Currey, 175 Ala. 373, 375, 57 So. 962, Ann. Cas. 1914D, 81, applied the statute where the bond was defective though not ineffectual, and held opportunity for amendment should have been given.

The cases as to appeals by married women (section 6138, Code) without bond are not analogous. Ex parte Johns, 209 Ala. 638,96 So. 888; Kimball v. Cunningham Hardware Co., 201 Ala. 409,78 So. 787. In Peters v. Chas. Schuessler Sons, 208 Ala. 627,95 So. 26, the case of a married woman seeking to take an appeal without security for costs in a case where such security was required and the ruling was that security not having been given before the time for taking appeal had expired, the motion to dismiss the appeal was granted; no effort being made to give security. In Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241, the security was given and there was failure of notice of the appeal, and the motion to dismiss was denied. In Ex parte Johns, 209 Ala. 638, 96 So. 888, the trust instrument and estate were the subject of inquiry; held that Mrs. Johns had the right of appeal without bond, under section 6138 of the Code. The question before us for decision was not presented in Jacobs v. Goodwater Graphite Company, 205 Ala. 112, 87 So. 363, where the observation was made that the appeal was taken on giving security for costs and docketing the cause here on certificate, within the time prescribed, though the transcript was delayed in its filing in this court. See, also, Cobb v. Reed Phosphate Co., 220 Ala. 55, 124 So. 94, where the possession of land was the subject of suit to quiet title; Lea v. Phillips, 216 Ala. 35, 112 So. 323, sought to annul a mortgage; Ex parte Jones, 217 Ala. 208, 115 So. 301, for money payment; Ex parte Brown, 213 Ala. 7, 105 So. 170, an appeal from a money judgment. No attempt to perfect the appeal by giving bond was made in any of these cases under the provisions of sections 6144, 6145, of the Code.

Such are the several classes of our decisions having analogy to the instant situation or suggested as bearing upon the question before us. We repeat that the decisions under the codification of the Acts of 1915, p. 715, as section 6138 of the Code, do not present the question for decision here; in each of those cases no bond was offered as here. The purpose of the statute (sections 6144, 6145, Code) was to meet the necessities of a case like this.

The motion to dismiss the appeal was properly denied on former consideration.

Application overruled.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *Page 638