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 1979-07

Stewart v. Younger ( 1979 )


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  • 375 So. 2d 428 (1979)

    P. R. STEWART
    v.
    Judge Thomas N. YOUNGER et al.

    77-741.

    Supreme Court of Alabama.

    July 27, 1979.
    Rehearing Denied September 28, 1979.

    Patricia R. Stewart, appellant in pro. per., Executor to the Estate of Felix I. Stewart.

    Roscoe Roberts, Jr., of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for the Estate of Felix Isaiah Stewart, deceased.

    PER CURIAM.

    This appeal by P. R. Stewart, one of the devisees of the Estate of Felix Isaiah Stewart, challenges the "Final Decree on Final Settlement" entered by the Circuit Court of Madison County.

    Apparent upon the face of the record, however, is a fatal defect in this appeal. The latest order appealed from (the trial Court's order overruling Stewart's "Petition for Amended Order or Decree") is dated July 18, 1978. The notice of appeal was filed in the Circuit Court on August 30, 1978—43 days after entry of the July 18 judgment.

    Assuming the order appealed from will support an appeal, the Alabama Rules of Appellate Procedure contain but one jurisdictional Rule. ARAP 4 provides:

    "... [T]he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from."

    We held in Holmes v. Powell, 363 So. 2d 760 (Ala.1978), that ARAP 25 "does not apply to all filings, but only to filings in an appellate court. That rule does not allow a certified mailing date as this was to be deemed the filing date in a trial court." (Emphasis in original.) In the interest of finality of judgments, the prescribed time within which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court. Furthermore, it is our duty to notice the filing date and to dismiss the appeal upon our own motion when the notice of appeal is not filed with the trial court within the prescribed time.

    APPEAL DISMISSED.

    MADDOX, JONES, SHORES, EMBRY, and BEATTY, JJ., concur.